BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 924
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
CHICAGO & NORTH WESTERN TRANSPORTATION COMPANY
Case No. 162
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STATEMENT OF CLAIM: Claim
of
the System Committee of the
Brotherhood that:
1. The dismissal of F. D. Clapp for his alleged
responsibility in connection with an altercation
with his foreman while off duty and off Carrier's
property was without just and sufficient cause,
unsupported and discriminatory (organization File
3KB-4440 D; Carrier File 81-89-67).
2. Claimant F. D. Clapp shall now be reinstated
with seniority and all other rights unimpaired,
compensated for all time lost and be made whole for
all losses suffered by his unjust dismissal.
FINDINGS:
Claimant F. D. Clapp was employed by the Carrier as a
machine operator.
On November 23, 1988, the Carrier notified the Claimant to
appear for a formal investigation into the following charge:
Your responsibility for entering into a physical
altercation which resulted in personal injury to
Foreman D. Contreras at approximately 2:30 a.m.,
November 23, 1988, while off duty and staying in
lodging at the expense of the Company.
After one postponement, the hearing took place on December
16, 1988. On December 23, 1988, the Carrier dismissed the
Claimant from service. On March 28, 1989, the Organization
appealed the Carrier's decision, claiming that the incident
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occurred off Carrier property; that there is no rule covering
this incident; that the Carrier prejudged the case; and that the
Claimant did not receive a fair and impartial hearing.
Thereafter, the Carrier reaffirmed its decision on the basis that
the Claimant was responsible for the physical assault and injury
to Mr. Contreras. The parties being unable to resolve the
issues, this matter came before this Board.
This Board has reviewed the evidence and testimony in this
case, and we find that there is sufficient evidence in the record
to support the finding that the Claimant was guilty of engaging
in a physical altercation with his supervisor which caused severe
physical injury to the foreman.
The record reveals that the Claimant's foreman received a
broken nose as a result of being struck by the Claimant.
Once this Board has determined that there is sufficient
evidence in the record to support the guilty finding, we next
turn our attention to the type of discipline imposed. This Board
will not set aside a Carrier's imposition of discipline unless we
find its action to have been unreasonable, arbitrary, or
capricious.
In this case, the Claimant was found guilty of an extremely
serious offense. He was drinking alcohol and then he went to the
foreman's motel room, entered uninvited, and broke the foreman's
nose.
Given the serious nature of the offense of which the
Claimant was found guilty, this Board cannot find that the action
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taken by the Carrier was unreasonable, arbitrary, or capricious.
Therefore, the claim must be denied.
AWARD:
Claim denied.
t
PETER R M YERS
Neutral tuber
f `
rier Member r nization Membe
D e:
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