SPECIAL BOARD OF ADJUSTMENT NO. 924
T MAINTENANCE
and
UNION PACIFIC RAILROAD COMPANY
(FORMER CHICAGO & NORTH WESTERN TRANSPORATION
COMPANY
Case No. 265
Award No.
C2
STATEMENT CLAIM: "Claim of the System Co °ttee of the
rotherhood that:
l . The dismissal of Assistant Foreman .J. Justin for 's allege
involvement with altercation with a fellow employee on November 1,
2003, was without just and sufficient cause, in violation of the Agreement'
and excessive and undue punishment (System File 7 J-73311393467).
2. Assistant Foreman .J. Justinak shall now a reinstate to service with
seniority and all other rights unimpaired and compensate for all wage
loss suffered."
FINDINGS:
At the time of the events leading a to this claim, e
Claim
was
assigne to work for the Carrier as an Assistant Foreman,' working with two
separate Bangs.
y letter
date
November , 2003, the Claimant was notified to ear for
a formal investigation and hearing to develo the facts and lace responsibility, if
any,
in connection with a Claimant's alleged involvement ' an altercatiwit
fellow employee. a hearin was conducted as scheduled on November 11
2003. y letter date November , 0 , a Claimant was tile that s
9
result of the hearings he had been fours guilty as charge ; d e was airs
assessed Level discipline, dismissal from the Carrier's service. The
Organization filed a claim challenging the Carrier's decision, and the Carrier
denied the claim.
The Carrier initially contends that the record demonstrates that there were
no procedural violations by the Carrier. The Carrier insists that the Claimant was
afforded all elements of due process in accordance with the agreement. The
Claimant received adequate notice of his investigation, was allowed pie
representation, and was able to present his own witnesses, as well as crossexamine all of the Carrier's witnesses who were present at the investigation. The
Carrier points gut that the Organization asserts that a discipline at issue shoal
not stand simply because the General Chairman was not notified in writing about
the ceding charges against the Claimant before the investigation was held.
The Carrier maintains that ale lis not violated is Claimant and the
Organization receive notice of the charges in enough time to prepare for the
investigation d ensure that the Claimant is adequately reresehte esented. The Carrier
asserts that a plain reading of this Rule shows that a General Chairman's
notification is just a sidebar and is not intended to obscure the true intent f the
ale, which is o protect the Claimant's right to notice of charges. . The Carrier
asserts that although it erroneously notice a Organization's ice President,
rather than the General Chairman, the Organization nevertheless receive or
that enough notice in that the vice Chairmen also receive notice of t pending
charges. The lack of formal written notice
to
the General Chairman did not
deprive the Claimant of a fair trial or prejudice the investigation in any way. The
Carrier further points out that a number of Board Awards have held that minor
procedural shortcomings
do
not provide enough grounds to overturn. discipline
assessments.
The Carrier goes on to contend that the transcript demonstrates that the
evidence of the Claimant's guilt
1s
overwhelming. All three impartial witnesses to
the altercation agree that the Claimant struck his foreman multiple times without
provocation. Moreover, the Claimant accepted his guilt, and he acknowledged
that the foreman never fought back or instigated the violence in any way. , The
Carrier emphasizes that all the witnesses and the Claimant agree that the
Claimant's violent acts were premeditated in that he disregarded prior warnings
and
advice from his colleagues about the possible consequences of striking the
foreman. The C ier insists that it is accepted on the property that admission
of guilt provides substantial evidence of a rule violation. The Carrier maintains
that in the instant case, there is more than enough evidence of the Claimant's
culpability to uphold the Carrier's decision.
The Carrier goes on to contend that once aritrl panel verifies that
substantial evidence supports finding of guilty, a panel lacks authority to
overturn the level of discipline assessed, even if the discipline may see harsh,
unless there is a. sufficient demonstration tat the discipline was arit,
capricious, or an abuse airier discretion. a Carrier insists t the discipline
3
,,
t
SBA
at issue was not arbitrary, capricious, or an abuse of Carrier, discretion. The
Carrier emphasizes, that the Level 5 discipline assessed in the Grievant's case was
correct and in accordance with the Carrier's UPGRADE Policy. The Carrier
asserts that the Claimant's violence and threatening of Carrier employees was an
act of hostility affecting the Carrier's interests and warranting dismissal. The
Carrier her argues that the Level 5 discipline was the required discipline under
the circumstances. There is no evidence of arbitrariness or capriciousness in
connection with the assessment of discipline in the instant case, so there is no
reason for this discipline to be oveed.
The Carrier ultimately contends
that
the instant claim should be denied in
its entirety.
The Organization initially contends that the Board consistently has held that
discipline is supposed to be corrective in nature, rather than retribution: The
Organization asserts that the Claimant had a clear discipline record prior to the
events at issue, and he admitted his wrongdoing. The Organization maintains at
the time that the Claimant has been out of service constitutes more than sufficiet
punishment. The Organization also points out that a number of Board Awards
provide ample precedent for reinstatement..
The Organization ultimately contends that the instant claim should e
sustained in its entirety.
The parties being unable to resolve their dispute, this matter cane before
this or.
r,
i
. Z6A
This Board has reviewe the procedural arguments raised the
rganization, and we find them to be without merit.
This Board has reviewed the evidence and testimony in this case, d we
find that there is sufficient evidence in the record to support the finding that the
Claimant was guilty of violating Carrier rules when he became involved in
an
altercation with a fellow employee on November 1, 2003. The Claimant admitted
that he struck his Foreman on several occasions without provocation on the date in
question. The Claimant also acknowledged that the Foreman never fought back
and did not instigate the violence.
Once this Board has determined that there is sufficient evidence 'the
record to support the guilty finding, we next turn our attention to the a of
discipline imposed. This Board will not set aside a Carrier's imposition of
discipline unless we find its actions to have been unreasonable, arbitrary, or
capricious.
it is fundamental that engaging in violent acts toward one's Foreman is
grounds for dismissal. The Claimant offered no evidence or basis to justify
reinstating him to the Carrier's employment: There is nothing in the record that
shows that the Carrier's action in terminating this Claimant for his violent actions
was unreasonable; arbitrary, or capricious. Therefore, the clam. must be denied.
1
The claiitn is denied.
O VIZATION N--MA~BER
DATED:
PETE . E
ember
y2
CARRIER MEM R
ATE
~`1. 70 DJ,