FIRST DIVISION NATIONAL RAILROAD ADJUSTMENT BOARD CHICAGO, ILL. VOLUME 84 AWARDS 12627 TO 12717 Interpretation of Award 12380 CHAMPLIN-SHEALY COMPANY LAW PRINTERS 100 N. LaSalle Street Chicago 2, Illinois 365 Docket No. 22643 FIRST DIVISION NATIONAL RAILROAD ADJUSTMENT BOARD 39 South LaSalle St., Chicago 3, Illinois. The First Division consisted of the regular members and in addi- PARTIES TO DISPUTE: BROTHERHOOD OF RAILROAD TRAINMEN ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY STATEMENT OF CLAIM: Request for reinstatement of Brakeman L. O. Young, Hugo, Oklahoma, to service with all seniority rights unimpaired and pay for all time lost since dismissed from service April 29, 1947. FINDINGS: The First Division of the Adjustment Board, upon the whole record and all the evidence, finds that: The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934. This Division of the Adjustment Board has jurisdiction over the dispute involved herein. The parties to said dispute waived hearing thereon. This is a claim for reinstatement and pay lost from April 29, 1947 by Brakeman Young. This man, it is alleged was called for the Madill Switcher, did not protect the assignment, and laid off for several days without permission. When he was summoned to the office of official, after some questions and answers, the claimant declined to answer any more questions. We do not think the record has precisely proved that the claimant failed to protect his assignment because in fact he was not called on the day the run occurred. In this respect, however, the petitioner was not blameless since he had said not to call him as he did not wish to make the run. Neither is it clear that he laid off without permission since he was given a telegraphic pass to visit his mother. It does seem clear, however, that he obstructed proper investigation of these charges by refusing to answer questions. Moreover, evidence appears in the record that the claimant had on occasion been troublesome and complaining. Because of his past record, his obstinacy with respect to assignment to the Madill Switcher, and his refusal to answer questions at the investigation, we cannot act affirmatively on this claim. We can do no more than listen to the contentions that the investigation was not complete, fair and unprejudiced, especially with respect to lack of investigation of obstructing of hearings. Because of these circumstances, the docket is being returned to the property for another investigation, which power we have stated we have in Docket 23357, Award 12626. AWARD Docket returned to property for proper investigation under Article 34. BY ORDER OF FIRST DIVISION NATIONAL RAILROAD ADJUSTMENT BOARD ATTEST: (Sgd.) T. S. McFarland Executive Secretary Dated at Chicago, Illinois, this 14th day of February, 1949. FIRST DIVISION Docket No. 23419 NATIONAL RAILROAD ADJUSTMENT BOARD 39 South LaSalle St., Chicago 3, Illinois. The First Division consisted of the regular members and in addi- PARTIES TO DISPUTE: BROTHERHOOD OF RAILROAD TRAINMEN SOUTHERN RAILWAY COMPANY STATEMENT OF CLAIM: Claim of Yardman M. Henderson, to be reinstated into the service with seniority unimpaired and paid for time lost account of being wrongfully dismissed for the alleged violation of Rule “G” on July 10, 1947. FINDINGS: The First Division of the Adjustment Board, upon the whole record and all the evidence, finds that: The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934. This Division of the Adjustment Board has jurisdiction over the dispute involved herein. The parties to said dispute waived hearing thereon. This is a claim of Yardman Henderson to be reinstated with seniority unimpaired and paid for time lost. He was dismissed July 10, 1947 for alleged violation of Rule G. As to proof of intoxication when reporting for duty, there was no doubt sufficient probative evidence to establish the charge though it would be more conclusive if there had been more witnesses so attesting. The instant charge is supported by reference to previous experience with this claimant. An official, according to the transcript of this investigation, had on a previous occasion warned claimant about coming on duty in an abnormal condition. For this, the claimant had in good grace thanked the official. In mitigation, this is point one. Point two is also in the transcript. His foreman testified that claimant had been one of the hardest working switchmen with whom he had ever been in contact. Intoxication on duty is a very serious thing and can never be completely condoned by any degree of mitigating circumstances in the railroad industry. But because of the working record and grace of the man, we feel that the carrier has gone too far in the penalty imposed. We are fully aware this Division has often taken the position that it is without authority to substitute its judgment for that of the carrier in matters of discipline. It has done so, however, and we propose to do it once more. The loss of pay for one and one half years is a considerable penalty. AWARD Claim is sustained as to reinstatement and seniority, but denied as to pay of wages while out of service. BY ORDER OF FIRST DIVISION ATTEST: (Sgd.) T. S. McFarland Dated at Chicago, Illinois, this 14th day of February, 1949. |