more was here involved than the simple cleaning up of scrap debris or salvage material which was performed after the wrecking crew had completed its wrecking services and, therefore, was purely incidental thereto. We do not regard such work as carmen's work within the purview of Rule 138. Accordingly, the assignment of such work to the maintenance of way employes was not violative of the labor agreement. 2. The Claimants have referred us to our Award 878. However, a careful examination of that Award reveals that the facts underlying it are distinguishable from those presented by the instant case. Award 878 was based on our finding "that more was involved in this work than cleaning up scrap and debris. The material was all sent to the shops . . . and the major portion of it was placed back in use." In the case at hand, the available evidence does not permit such a finding. On the contrary, the record is devoid of any indication that a major or at least a substantial part of the material handled by the maintenance of way employes was placed back in use. Accordingly, our previous Award is of no assistance in the disposition of the instant case. AWARD Claim denied. NATIONAL RAILROAD ADJUSTMENT BOARD ATTEST: Harry J. Sassaman Executive Secretary Dated at Chicago, Illinois, this 26th day of February, 1963. Docket No. 3974 2-AT&SF-CM-'63 NATIONAL RAILROAD ADJUSTMENT BOARD SECOND DIVISION The Second Division consisted of the regular members and in PARTIES TO DISPUTE: SYSTEM FEDERATION NO. 97, RAILWAY EMPLOYES' THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY (Eastern Lines) DISPUTE: CLAIM OF EMPLOYES: 1. That under the current agreement Carman K. J. Tavener was unjustly dismissed from the service of the Carrier on October 11, 1960, at Kansas City, Missouri. 2. That accordingly the Carrier be ordered to reinstate the Claimant to service with all rights unimpaired and with compensation for all time lost retroactive to and including October 11, 1960 and to continue. EMPLOYES' STATEMENT OF FACTS: K. J. Tavener, hereinafter referred to as the claimant, was employed by the Atchison, Topeka and Santa Fe Railway Company, hereinafter referred to as the carrier, as a car inspector at Kansas City, Missouri, at the time the incident occurred, where the carrier maintains a repair track and car inspector forces. The claimant was regularly employed, bulletined, and assigned as a carman on the repair tracks, working hours of 7:30 A. M. to 11:30 A. M., and 12:00 Noon to 4:00 P. M., work week of Monday through Friday, rest days of Saturday and Sunday. However, on date of the alleged incident, the claimant was working in the trainyards on a temporary vacancy of an employe who was off work. The investigation was held on September 16 and 17, 1960, to determine the facts and fix the responsibility concerning the charge of the claimant's alleged indifference to duty, insubordinate, quarrelsome, and vicious attitude toward Supervisor E. J. Ruff on Friday, August 19, 1960, violating Rules 1, 2, 3, 19 (Rule 20 in previous issue), 20 (Rule 21 in previous issue), and 21 (Rule 22 in previous issue) of the "General Rules for Guidance of Employes, Form 2626 Standard." On October 11, 1960, the claimant was removed from service as is identified in employes' Exhibit. Protest has been made to the carrier's official on prior occasions concerning foremen cursing the employes and otherwise using vile and profane language. The Assistant Car Foreman (Mr. E. J. Ruff) had been using particularly vile language and had referred to the claimant in such a manner so as to warrant a natural repercussion. Mr. Ruff had no respect for the collective bargaining agreement and was determined to continue his arbitrary and vulgar way of supervising the employes. Carrier's higher supervisors apparently were unable or did not want to correct the situation except by taking action against the claimant. The claimant was local chairman, is highly respected by his fellow workmen, and his relationship with the general car foreman was beyond reproach. Further, the carrier must recognize that any argument or misunderstanding on August 19, 1960, was caused by the foreman's repeated vile name calling and by his negligence and attitude toward providing for a lunch period. This dispute has been handled with the carrier up to and including the highest officer so designated by the company, with the result that he too declined to adjust it. POSITION OF EMPLOYES: It is submitted that within the meaning of Rule 331⁄2 captioned "DISCIPLINE”: "(a) No employe will be disciplined without first being given an investigation which will be promptly held, unless such employe shall accept dismissal or other discipline in writing and waive formal investigation. Suspension in proper cases pending a hearing, which shall be promptly held, will not constitute a violation of this rule." which is contained in the aforesaid controlling agreement, the claimant is an employe subject to the terms of said agreement and, therefore, not only believes he has been discriminated against and unjustly dealt with, but that the provisions of the agreement were violated when he was dismissed from service on October 11, 1960. Moreover, depriving this claimant of his service rights forever, or for even one minute, in the factual circumstances is not justified because: (1) The charge against the claimant was not a proper charge. (2) The investigation record does not in any remote degree convict the claimant of the charge. (3) Even if the charge is deemed proper with sufficient proof, the carrier has discriminated against the claimant and has singled him out among many, including its own supervisors, to punish while recognizing that rough and off-color language is commonplace in its yards and facilities. (4) The action of the foreman was sufficient to cause the employes under his supervision to lose respect for him and such action was sufficient to bring about a dispute between the parties which the carrier must recognize is not unusual on its property. (5) The claimant is innocent of the charge. (6) The carrier's action throughout serves to convict it of discrimination and of exercising arbitrary power based on vague and manufactured charges and of capricious judgment by the carrier's officers resulting in the loss of earnings as well as mental anguish to the claimant, the results of which at this writing cannot be measured. In Docket 3666, in its submission, the carrier recognizes that rough and off-color language is railroad language. A copy of the carrier's submission in that docket is submitted herewith and identified as Exhibit D. During the handling of that particular dispute on the property, Mr. L. D. Comer, Assistant. Vice President, in his letter to the general chairman dated July 3, 1959, stated: "Insofar as concerns the allegations that were made by Mr. McKinney and other witnesses during the investigation with regard to the use of profanity by Mr. Lee, and which were obviously advanced for the purpose of confusing the record in an attempt to shift the responsibility for Mr. McKinney's actions and have again been advanced in the handling of this case on the property, it will suffice to say that while this Carrier does not condone the use of profanity by its supervisors in their contacts with the employes under their jurisdiction, it is unfortunately something that has been accepted as railroad language and is all too often used by both supervisors and other employes, including many of those whom you represent, in the performance of their respective duties and responsibilities, and all without any apparent intention of disrespect or abuse." (Emphasis ours). A copy of the letter referred to from which the above quoted is taken is included in the carrier's submission and the above quoted is found on page 6 thereof. Further in this connection, the carrier's general manager Mr. G. R. Buchanan and Vice President Mr. C. R. Tucker state on page 14 of their submission to this Board on Docket 3666 that: "In this extraneous and unrelated testimony it was alleged that Foreman Lee was in the habit of using profanity and some vulgarity in his conversation with the men. This is not to say that many of these same employes do not use the same kind of language among themselves or in the presence of their supervisors. Carrier does not condone or uphold the use of such language, but wishes to point out that its use is all too common among men in the Railroad industry and all without any derogatory or malicious intent." (Emphasis ours). Nowhere in the record is there any evidence or charge that the claimant failed to perform his work in a completely satisfactory manner. The record shows the contrary to be true. The record shows also that the dispute between the claimant and Foreman Ruff had its origin in the question of tying up for lunch and the vile name-calling by Foreman Ruff and the failure of the carrier's officials to correct such abuses. It is inevitable that the investigation record does not sustain the charge contained in Exhibit A. Consequently, under the provisions of Rule 33% of the controlling collective bargaining agreement in applicable part reading: "(d) If the final decision shall be that an employe has been unjustly suspended or dismissed from the service, such employe shall be reinstated with seniority rights unimpaired, and compensated for the net wage loss, if any, resulting from said suspension or dismissal." there is no basis to escape finding after a careful examination of the record that the carrier was arbitrary and capricious, therefore, the action of Master Mechanic Chastain stands reversed and the claimant is entitled to be made whole by the Honorable Members of this Division. CARRIER'S STATEMENT OF FACTS: There is an agreement in effect between this carrier and System Federation No. 97, Railway Employes' Department, A.F. of L.-C.I.O., representing the Brotherhood Railway Carmen of America, parties to this dispute, identified as shop crafts' agreement, effective August 1, 1945 (reprinted January 1, 1957, including revisions), copies of which are on file with the Second Division of the National Railroad Adjustment Board and are hereby referred to and made a part of this dispute: Kenneth J. Tavener, hereinafter referred to as the claimant, entered service of the carrier as a carman helper at Argentine, Kansas, Novmber 20, 1949, and subsequently worked as a car oiler, freight carman apprentice, car carpenter and car inspector. On August 23, 1960 he was notified by certified United States mail, return receipt requested, to be present at formal investigation, with representative of his choice, to be held in office of the master mechanic, Argentine, Kansas, at 10:00 A. M., Friday, August 26, 1960, the notice reading as follows: "Mr. K. J. Tavener, Carman Argentine, Kansas Dear Sir: "PR Argentine, August 23, 1960 You are hereby notified to appear before formal investigation in the office of the Master Mechanic, Argentine, Kansas, at 10:00 A. M., Friday, August 26, 1960, to determine the facts and fix the responsibility concerning your alleged indifference to duty; and insubordinate, quarrelsome and vicious attitude toward your Supervisor E. J. Ruff on Friday, August 19, 1960. The preceding in alleged violation of Rules 1, 2, 3, 19 (Rule 20 in previous issue), 20 (Rule 21 in previous issue), and 21 (Rule 22 in previous issue) of the General Rules for Guidance of Employes, Form 2626 Standard. You are entitled to representation if you so desire. Yours truly, (Signed) H. N. Chastain, DMM The notice was received and acknowledged by the claimant on August 23, 1960 and on the same date he formally requested postponement of the investigation "until a later date so as Mr. Tavener can be represented by General Chairman Peter S. Brooker, General Chairman for the carmen". This request was granted and the investigation rescheduled for 10:00 A. M., Friday, September 2, 1960 and Tavener was so notified under date of August 24, 1960, which notice he received and acknowledged the same date. A further request for postponement was received from Mr. Tavener in his letter of August 28, 1960 wherein he stated that Mr. Brooker was on vacation and would not be available until the week of September 12, 1960. In compliance with this request investigation was again postponed until 2:00 P. M., Thursday, September 15, 1960 and Mr. Tavener was so notified on August 31, 1960, receipt of which was acknowledged by him the same date. The investigation was held in |