PAR,T'THs To DISPLFM United Transportation Union-Trainmen.

                    Southern Pacific Transportation Company

                    (Western Lines)


=TtMf"3T OF" CLAIN, acReqUezt of Conductor Nordane F.. Peck, Sacramento Dvision, for replacement o_ wage loss and productivity credits res:~lting from his suspension from service for 30 days from ,Tune 25, 1991, to July 24, 1591, inclusive. Included herein, i5 our request for reimbursement of wage loss and productivity fund credits for attending formal investigation on July 10, 1991. In addition, we request that all references t this matter be expunged from Conductor .Pack's personal record.

 roconducwor Peck was suspended from service for alleged violation ref Rulers 10007 sand 1003 of (tae southern Pacific Lines, Safety and General Rules for All exployees, Southern Pacific Transportation Company, effective April 1.57, ''991. These charges are generated by an alleged incident asserted to have -occurred o: of about June 5, 1991.E`

 sTRT847RNTOx FACTS: On Jttne 2'9, 1391, the Carrier directed the following not.icp to the Cla4mant, along with two other employees;

      "You are: hereby notified to be present at the office of the Trainnaster, 1600 Vernon St., Roseville, California, at 9:00 A.M.., Friday, June 28, 1991 for formal investigatiOn to develop the facts and. place responsibility, if any, in connection with you al.eqedly wearing white hoods and burning a cross in the presence of tar. Lloyd Gaynor Jr,.ti of W employee, in the vicinity of Floriston, 'I.lepost 219. 5, on or ab"t :rune, 5, 1991 at approximate-ly 11 A,11x.


      For the above occurrence YOU are hereby chargers with responsibility 'Which may involve a violation of Rule 1W, that part reading:


          ·1:0®7. CONDUCT: Employees roust conduct

          themselves icy such a manner that their

          company will neat be subject to criticism or

          loss of good sill.

          ".mpioyees will not be retained in .service who are . . . . quarrelsome or other".rise.

_ vicious, or who conduct themselves in a
          ' -manner which would -uhiac-t o~.a .:aiirQad to criticism. ;any act of hostility, misconduct

say Vo~ I 8

          Decision, No~ MO Case No. 156D-T Page 2 or w1l1ul disregard cr negligence affecting the interests o_' the Company is suf ficiant cause for dismissal an=3 Zuat be reported. Indifference to duty, cr to t.)%& performanct of duty, will not be condoned. Courteous department as required of a.1.3 employees in their dealings with the public, their gubar;dfnata-A and each other- Mointerous. profane or vulgar language is forbidden.

            .Employees must be conversant witty and

      adhere to the i^OVpa::yfs Affizzative Action Policy~ Instances of discrimination or sexual harassment must be reported, arid if substantiated, wag result an disciplinary action up to .a.nd i.awi,c-.ding dismissal., cram rule i.0Li3., that part readi ^g:


          t1003. REPORTING VT_O1Xz-IOiiSjccuvITjoNs;

          Employees must cooperate and assist in

          carrying cwt the rules and instructions and

          promptly report to proper autharit.y

          any mi,seon.c3ttc::. or negligence affacting the

          interest of the Company. I


      "of this Southern. Pacific Lines, safety and Ga~bera.l Rules for All Employees, Southern Pacific Transportation Canpany, ea sect: re April. 15, 1.991,


      "You are entitled to representation anti witnesses in accordance w:;th. your agreerip.ent, provisions. Any request for pastpone.nt sn'4st ha %vhmitted in writing, including ;:::e reason, therefore, to tide undersigned."


SubSeguer,t tc the zhveOt.iqatian; the Claimant was assessed the discipline now on appeal before the Board.
R_,jNI3ZNG$: This Board, upon 'Chi whole record and all of the, evidence, finds that the Employees and Carrier i:nvaiued in this dispute are retpactivafy Employees and Carrier within the meaninG of the Railway Labor Act as amended and that the Board has jurisdiction agar the dispute involved herein.

 ~~C~S~SWc It is undisputed that an incident occurred where at
 least one employee wore a pi.ilowcase ever his dead and used a
 crudely farz:,ed cross in the presence of Mr. Lloyd Gaynor, an
 Afro-American. 3t is noted that among Many ef the arguments
 advanced by the Union is that the incident Was a well-intended
 prank without 7R.2LliC,wt9R9S intent. If'n.n_t_a4-,
                                    -6.`.a. ... ^.`.,.a. '' -.~

                                            wcau.i..1';nOJ.ySi thaw

                                          seA- pz). )a


                                          Decision :ca. 601.0 Case No. 1560-'T page 3


Mfr. Gaynor took. it as s joke an did the officer asked to investigate the ~nciuent, who also was black.

 The Board feels cmpel:led to print out that whether the incident was meant sir taken as a joke is not dispositive. The Carrier is obligated under law to provide a work place free fror racial harassment and hostility. While Kr. Gaynor may not have been personally ctfended, the incident, i_ scat addressed, would tend to lead others to believe such behavior was .acceptable or least go unpunished- " knowledge of such an incident would spread. among employees, it would easily be subject to
 misinterpretation and would contribute to aft inappropriate work
 environment. Such behavior is plainly improper, and even i£ it
 was intended as a joke, i: is svaject to discipline.

While racial. pranks and. jokes arcs inappropriate and aubjec· to discipline even whets the object is not offended, this does n~ relieve the carrier from its burden to prove the prec:-se charge against the Claimant by way of substantial evidence. The plain fact is that the evidence does not support the charge that the.

claimant wore a hcod or burned a cross. 3'o tae contrary, the evidence indlcates that nag cross was burned and that only ogee employee, riot the Claimant, wore a pillowcase., imitating, we

suppose, a hood.

                          QW


in view that the evidence does not support the charges,

the claim is sustained.


                            6~ - -

                          G Vernon

                          Chairman and Neutral Member


                          J . L. Jordan _,.~ -

                          Carrier Member


                          ~.. Ea john^son -

                          Union Member


jhated this*--ec day Of May 1395.
          CARR if,>°,S5ENi O CrEC IS LO'!i ,··7;1S, 60.10 & ~s1I.


Carrier d.isssnz~s to majority "In Csxc$.Sior. N~.S, 60i0 and 6,3; 1. pnhi7
 the.majorivy be7.iev*fi that the Carrier did not prove she .,.xk,pcxf.i
 Charges- against the ·r7win.4:~ts, sahstanti.ai --virience exists that a.
 ~.Y:~y &f ~ ra
 -ra.a7 ::atura did rscwur, objected too or no: . ed bth,
 insaalwPaxt:.8s. 1'

 4i:.ax3es era to ..`e s.pecz`aa in nature r,:~ the extent that an #mployO ia a*,.adE ~.4are of t?:a appraximmte time, place
                                        and situation, wit


the appropriate :uies cited which were ariMJ.ated, so that he/zhe

,~a prepare a prcrvpr defense. The ciaimarts presented a proper defense


in the cases before th=s Scara, _. za unrefutac5 that an evp:. occurred which, someone found offensive enough to anonymously reprsr it to Carrier offi4ials. h.ltrnu# the etdlesaiCy believes that th

clais.rts :acre not yai.ty on . . ,weaxing white hoGcF.a and burning

axot!a .., the clai.s-GSnt.s were undeniably in wits.3at,inn of Carrier' conduct rules and palic,as regarding dz.scri.rnaostion aar3/c t-<.a zassnOnt .


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                                  FOR TKW


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