NATIONAL MEDIATION BOARD SPECIAL BOARD OF ADJUSTMENT 1049
arntherhood of Maintmance of Way Employes ) Division - IBT Rail Conforenc:l' )
)
And )
)
Norfolk Southern Railway Company )
(Former Southcm R:1ilway Company) )
Case No. 258
Award No. 258
Richard K. Hanft, Chairman ant.I Neutral t-.kmber
l). M. Pascardla, Employee lcmht•r
D. L. Kerhy, Carric.·r !\!ember
..Claim of the System Committee of the Brotherhood that:
The Carrier's discipline (dismissal) of Mr. P. Skakum, issued by letter dated October 29, 2015, in connection with his alleged conduct unbecoming an employe in that: on September 2, 2015, he wic:lded a switchblatle knife and stated he would cut cmploye B. A. l\lann; on
Septemht·r 3, 2015, he made offensive and inappropriate remarks and hand gestures to employt· C..J. Hales, while discussing cows on the tracks; during the morning safety meeting
un September 2, 2015, he alluded that two (2) cmployes 11hould compare the si:t.e of their
male anatomy in order to settle a dispute; during the first week of September, 2015, while
working with employe C. J. Bales, he repeatt'tlly used offonsive l:mgunhrc and rcpL-:ttcdly stated that he would refrain from speaking ahrn1t women in a sexual manner; on September
2, 2015, he made disparaging remarks about the attire that employee C..J. Bales was wearint;. as well as, Claimant's allegcc.l improper performance of dut)' in that on September 2, 2015,
while operating a hi-rail vehicle with t·mployt· D. W. Hinegardner, Ill, hewas tr:wding at an cxce11sive speed and skidded into a public crossing at l\·lile Post H- 185 .6, narrowly avoiding a collision with a public motorist; on September 2, 2015, while operating a hi-rail vehicle with employc D. W. Hinegardner, 11[, he collided with a Jowncd tree i1t l\lile Post H-183.5; while conducting track inspections with employc H. A. Mann on June 5, 12 and 26, 2015, he foiled to stop the hi-mil short of crossin1-.ri; and also pcrformetl switch inspections while traveling at thirty (30) miles per hour (mph) and while supt·n•ising a gang installing a frog i1t CP
Waynetex on AuWJst 5, 2015, he directed the gnng to stop their work without having
installed screws and m<1,·e tics was arbitrary, capricious, unjust, unwarranted, unrc1tsonahlc, harsh and exct•ssive (Carrier' File M\'V-ROJ\N.15-44-Ll\f-791 SOU).
Special Board of Adjustment No. 1049
Award No. 258
As a consequence of the violadon referred to in Part I above, Cl:iimant P. Skakum shall ha,·e his dismissal set uside with all notations therc.:of removed from all Carrier records and he shall also be reinstated and restored all senioritr rights and all (.•nritlcments to and credit for all financial and benefit losses, such as vacation and health insurnnc:e benefits occasioned as a result of the violation, including: (1) straight time for eucl1 regular work day lost and holiday pay for each holiday lost, to be paid at the rate of the position a11signcd to Claimant at the time of removal from servicl.' (this amount is not to be reduced by earninhrs from alternate employment obtained by Claimant while wrongfully removed frotn service): (2) any general lump-sum payment or retroacrin· At-'nernl wage increase prm·id'-·d in any applicable
agreement that became effective while CL-1imant was out of service; (3) overtime pay for overtime opportunities hased on overtime for anr position Claimant could have held during the time Claimant was removed from service , or on m·crtime paid to all}' junior cmplo}'e for work Claimant could luwe bid on and performed had Claimant not been renmved from service: and (4) health. dental and vision care insurance prl·miums, deductibks and co-pays that he would not have paid had he not been unjustly remm•ed from sl·rvice."
FINDINGS:
Specinl Board of Adjustment !049, upon the whole record and all of the evidence, finds and holds that I mployec and Carrier arc employee and carrier within the meaning of the Railway l..abor Act, as amended; and, that the Board has jurisdiction ovl·r the dispute herein; and, that the parties to the dispute were given duc notice of the hearing thereon and did particip:1te therein.
'I 'his t\ wan! is based un the facts anc.l circu1nstauces of this particular case and shall not sen·e a11 a precedent in any other cases.
After thorough!}' reviewing and considering thc record and thl· parties' presentations, thc Board finds that the claim should be disposed of as follows:
,\ charge of conduct unbl-coming an employc can be, and herc was, rooted in a violation of (;encral Conduct Ruic 900 that provides:
..1 mployces arc to conduct themselves in a professional m:inner and not engage in bchavior or display material that would be considered offensiYe or inappropriate: by coworkl·rs, customers or the public. Offensi\'C or inapproprfate beha,·ior includes making disparaging n·marks, tellinA jokes or using slurs conccn1ing race, religion, color, national origin, gender, age, veteran status, st.·xual orientation, disability or an}' other legally pmtccted status. ()ffensi\'e or inappropriate material includes that which is sexually (.·xplicit or insulting because uf race, religion, color, national orih•-in, gender, ahic, vctcran status, sexual orientation, disability or any other lehinllr protected status."
Special Board of Adjustment No. 1049
Award No. 258
Herc, the record shows, there was ample evidence introduced during the im·cstiJ.,tation tu support the hearing officer'11 finding on the property of conduct unbecoming an employe .
Moreover, the record reflects that Claimant failed to perform his dutic11 safely, diligently and properly on multiple occasions; inspecting 11witches at thiny(30) miles per hour, operating the hi-rail vd1icle at rL'Cklcss speeds and failing to properly install a "Fmg" where only eight (8) of twenty (20) tics supported it arc merely examples. Again, the hearing officer's findings on the property were neither unreason.'lbk·, arbitrary, capriciou11 nor an abuse of discretion. 'l11ere was substantial evidence in the record to support the same.
'lbc Board, however, notes the Claimant's brief but notable tenure with the Companr, CL'titnant only hired on in March, 2011 and in four (4) short years progressed through the ranks from Roadway I .'.lhorer to Assistant Track Supervisor. The Board is hopeful that this period of time out of service might serve as a wake-up call to an othclwisc salvah>cable employee.
The lloard directs the Carrier to rcinstatl' Claimant to rhe position of cntry-k·vcl Trackman without compensation for time out of service. All seniority dates cstablishL-<l in any class above 'l'rackman shall be forfdrcJ.
AWARD
C :Iaim sustained in accordance with the findint-,rs, Carrier is directed to make this Award effective within thirty days following lfate thilt two membcni of this Board affix their signatures thereto.
D. M. Pascarella, Employee Member
Dated at Chicago, Illinois, Januat)" 30, 2018