NATIONAL MEDIATION BOARD WASHINGTON, DC
SPECIAL BOARD OF ADJUSTMENT 986
NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK) - NORTHEAST CONFERENCE ("CARRIER")
AND
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION - IBT RAIL CONFERENCE
NMB Case No. 289
Employee: William J. Lacomchek, Fr.
Neutral Member: Carrier Member: Organization Member:
Barbara Zausner Richard Palmer Jed Dodd
STATEMENT OF CLAIM
The dismissal of Mr. W. Lacomchek, Jr., for alleged violation of Amtrak's Standards of Excellence, Sections 'Safety', 'Attending to Duties', 'Teamwork' and 'Conduct'; Amtrak's Workplace Violence Policy and NORAC Rules D, E and S is excessive, unwarranted, on the basis of unproven charges and in violation of the Agreement. (System File BMWE-4897D).
As a consequence of the violation referenced in Part I above, Claimant Mr. Lacomchek, Jr., shall be reinstated to full service immediately with full seniority unimpaired and made whole for all wages, benefits and seniority lost for the time of his termination and for the discipline to be expunged from his record.
FINDINGS
Upon the whole record and on the evidence, the Board finds that the parties herein are Carrier and Employer within the meaning of the Railway Labor Act, as amended; that this Board has jurisdiction over the dispute, and that the parties were given due notice of the hearing.
The Claimant, William Lacomchek, Jr., wasassigned as an electric traction lineman (ETL) headquartered at the Penn Coach Yard in Philadelphia, PA. He was dismissed for alleged violation of Amtrak's Standards of Excellence, Sections 'Safety', 'Attending to Duties', 'Teamwork' and 'Conduct'; Amtrak's Workplace Violence Policy and NORAC Rules D, E and S. Specifically, he acted in a belligerent and confrontational manner that was intimidating and threatening towards fellow employee Jeff Hurd during a telephone conversation on March 31, 2010. The Carrier maintains that dismissal is commensurate with the seriousness of the offense. It cites his prior record of discipline, including discipline for similar offenses.
The Organization asserts that the language involved in the incident between Hurd and the Claimant was shop or locker room talk that they routinely used. It cites testimony in support of that claim and to confirm that neither made any real threats to the other. Mr. Hurd's testimony at the formal hearing is quoted. The Organization also notes the Claimant's long service.
The Organization argues that dismissal is excessive and based on charges that were not proven.
Further in the Claimant's defense, the Organization notes that the Claimant apologized to Mr. Hurd the day after the comments were made. He has learned his lesson. A petition in support of the Claimant which is signed by a number of the Claimant's coworkers is offered in evidence.
The Board agrees with the Carrier that it has a duty to protect employees from violence and threats thereof in the workplace. Threatening language is not shop talk and is not an appropriate form of joking around. Termination of employment is routinely upheld by arbitrators when there is sufficient evidence to prove that one employee has threatened another.
In this case, a majority of the Board concludes that the Claimant shall be reinstated without back pay or benefits and with a last chance warning that he will be subject to dismissal if he engages in proven similar conduct in the future.
The Claimant shall be reinstated without back pay or benefits and with a last chance warning that he will be subject to dismissal if he engages in proven similar conduct in the future.
Barbara Zausner, Neutral Board Member September 27, 2011
21dL
For the Carrier -
Richard F. Palmer, Director - Labor Relations
For the Organization
Jed Dodd, General Chairman