Special Board of Adjustment No. 987
Parties to Dispute -
Brotherhood of Maintenance of Way )
Employees - N.E. System Federation )
Case No. 3
vs )
National Railway Passenger )
Award No. 3
Corporation )
STATEMENT OF CLAIM
1. The dismissal of Claimant William H. Scruggs was ex- .
cessive, without just and sufficient cause, and wholly
arbitrary and capricious, in that Carrier failed to
substantiate its charges at the hearing; and
2. Claimant Scruggs' record be expunged of the charges and
that Claimant be reinstated in Carrier's service and
be compensated for all lost wages, including overtime
pay, at the foreman's rate of pay for the time he was
out of service.
FINDINGS
On June 12, 1985 the Carrier notified the Claimant to attend
an investigation to determine facts and place responsibility, if any,
in connection with his alleged violation of Rules of Conduct I and K.
The investigation was held on July 10, 1985 with the Claimant _in
absentia. On July 18, 1985 the Claimant was advised that he had been
found guilty as charged and he was dismissed from service.
The Claimant was specifically charged with subjecting the Carrier
to criticism and loss of good will when his name appeared in the June
4, 1985 edition of the New London, Connecticut newspaper which is called
_The Due. On that date the newspaper identified the Claimant as an AMTRAK
employee who had received an eight month prison sentence for his involvement in a "scam" with AMTRAK credit cards. With respect to this charge
the Rule at bar reads as follows, in pertinent part:
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Special Board of Adjustment No. 987 (Award No. 3; Case No. 3)
Rule I
Employees will not be retained in the service ...who do
not conduct themselves in such a manner that the company
will not be subjected to criticism and loss of good will.-
The Claimant was also charged with violation of Rule K for having
been absent without a proper cause from June 3, 1985 until the day
the notice of--investigation was sent to him under date of June 12,
1985. This Rule reads, in pertinent part, as follows:
Rule K
Employees must report for duty at the designated time and
place, attend to their duties during the hours prescribed.
The record shows that the Claimant was in the Montville Correctional
Center when the notice of investigation was sent to him by registered
mail by the Carrier. The record also shows that the Claimant refused
to sign the appropriate papers as required by the Center in order that
he could have received the notice. In a sworn statement which is
part of the record a Correctional Center officer stated that the Claimant
told him that he "...knew what the letter was..." but yet refused to
accept it "...on the advice of his attorney".
The organization objects to the Carrier having sent the notice
of investigation to the Claimant in the first place, and to the sub
sequent investigation itself, on the grounds that the Carrier knew
of the credit card scam which the Claimant had been involved in as early
as the fall of 1984 and that the Claimant had already been called to
an investigation and disciplined over that matter. Such objection
just be dismissed since this case deals with other issues than the
Claimant's participation in the scam per se. This case deals with
potential damage to the Carrier's reputation because of the public
notice of the Claimant's sentencing for participation in the scam and
for perjury, and with the Claimant's excessive absenteeism.
on merits there is sufficient evidence of probative value in the
record to warrant the reasonable conclusion that the Claimant was guilty
of violation of the Rules with which he was charged. The Claimant's
past record, which is also before the Board, and which can be reasonably
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Special Board of Adjustment No. 987 (Award No. 3; Case No. 3)
used by a Carrier to determine the quantum of discipline, shows
that the Claimant had been disciplined on six occasions prior to the
case at bar, and had been disqualified on one occasion. Numerous -
arbitral forums have ruled, in this industry, that past record of an
employee can be used to ascertain the appropriate discipline if an
employee is found guilty, as accused, on merits (Second Division 5790,
6632; Third Division 21043 inter alia). On the basis of the record
before it the Board can find no justification for concluding that the
discipline in the instant case which was levied by the Carrier was
arbitrary or capricious. The claim cannot be sustained.
AWARD
Claim denied.
rd .' `S tZI ru , eu 1 Member
C. E. Woodco k III, arrier Member
J. J Davis n,-Employee Member
Date:\~ Z ~R