SPECIAL BOARD OF ADJUSTMENT
N0. 986
Case
No. 35
Docket No.
NEC-BMWE-SD-1535D
PARTIES:
Brotherhood of
Maintenance of Way Employes
TO
DISPUTE: National Railroad Passenger Corporation (Amtrak)
FINDINGS:
By letter dated May
13, 1986,
Claimant J.A. Owens was notified to
attend a hearing in connection with the following charge:
Violation of NRPC Rules of Conduct, Rule
'F',
Paragraph 1, which
states in part: "All employees are required to conduct themselves
in a courteous and professional manner in dealing with . . . other
Amtrak employees. Boisterous conduct . . . and profane or vulgar
language are prohibited."
Violation of NRPC Rules of Conduct, Rule
'F'
Paragraph 2, which
states in part: "Employees will not assault,
threaten, harass,
intimidate . . . or participate in any activity which could cause
bodily injury to other employees .. . . while on duty or on Amtrak
property . . Employees, whether on or~off duty, will not disrupt
or interfere with other employees in the performance of their
duties."
Violation of NRPC Rules of Conduct, Rule 'L',
which states
in part:
"Employees must obey instructions . . from Amtrak Supervisory
personnel . . . Insubordinate conduct will not be tolerated."
Specification: In that on April 30,
1986
in the vicinity of M.P.
85
between the hours of approximately 2:00 A.M. and approximately 4:30
A.M. when you pushed, threatened, harassed, intimidated, failed to
follow instructions, used profane and vulgar language to Foreman
T.D. Kelly. An in that on April 30,
1986
between the hours of
approximately 2:00 A.M. and 4:30 A.M. you threatened, harassed,
used profane and vulgar language, and failed to follow instructions
of Assistant Supervisor, C.L. Matlack, Jr.
The hearing was held on May 20-22,
1986. As
a result of the hearing,
Claimant was assessed a forty-five-day suspension. The organization
subsequently filed a claim on Claimant's behalf, challenging the
suspension.
The Organization contends that Claimant's behavior was provoked
by Track Foreman Kelly and Assistant Track Supervisor Matlack.
The Organization also argues that on the day in question, Kelly's
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conduct was unprofessional, discourteous, and provocative. Moreover,
Claimant stated that any discourtesy directed toward Kelly was
unintentional; the organization contends that Claimant immediately
stopped any discourteous conduct when he realized that Kelly was the
person involved. The Organization further argues that the initial
incident between Matlack and Claimant was provoked by Matlack; the
employee who witnessed the incident testified that Matlack was the
first to use profane language. The Organization argues that a Carrier
supervisor may not use profane language with a subordinate, then
discipline that subordinate for responding in kind.
The Organization also contends that the testimony about the
incident in Matlack's vehicle is too contradictory to support a
finding of guilt. The organization points out-that it is not credible
that Claimant would use words that are demeaning to his own race, as
Matlack asserted. The organization contends that Matlack may have
been embellishing his memory of the incident. The organization
finally argues that because the record shows that Claimant was
provoked to a point where he could not be expected to maintain his
composure, the claim should be sustained.
Carrier further argues that there is substantial evidence in the
record to support its finding of guilt. Carrier argues that the
testimony of its supervisors establishes that Claimant refused to
follow instructions, directed profanity at Kelly, and physically and
verbally threatened Kelly. Moreover, the evidentiary record shows
that Claimant also was insubordinate to Matlack, threatened Matlack
and his wife, and directed profanity at Matlack. Carrier points out
that the testimony of both Claimant and Claimant's witness indicates
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that Claimant is guilty of misconduct.
Carrier goes on to argue that it did not improperly limit the
Organization's questioning at the hearing. Carrier contends that the
hearing officer properly attempted to keep the questioning on point
and away from issues that were not directly related to the: charges,
particularly the qualifications and personnel records of the
supervisors involved in the incident. Carrier also points out that
there was no evidence of prior animosity, nor does the record show
that any provocation occurred. Moreover, Carrier argues that Kelly's
actions were appropriate because Claimant refused to obey his
instructions. There was nothing in either Kelly's or Matlack's
actions that caused or warranted Claimant's conduct. Carrier also
asserts that Claimant knowingly ditected.profane comments and threats
at Kelly and Matlack. Carrier contends that the record proves that
claimant was the aggressor throughout the incident.
Carrier argues that the assessed discipline is commensurate with
and fully warranted by the offense and Claimant's prior record.
Carrier asserts that the discipline is not arbitrary, capricious, or
excessive. Carrier contends that the claim should be denied in its
entirety.
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 the offense with which he
was charged.
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. In this case, we cannot
find that the 45-day suspension issued the Claimant was unreasonable,
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arbitrary, or capricious given the type of behavior in which the.
Claimant engaged. Therefore, the claim must be denied.
Award:
Claim denied.
Neutral ember
l
Ca tier Membe Organiza ion Member
Date:
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