The Second Division consisted of the regular members and in

addition Referee Howard A. Johnson when the award was rendered.


PARTIES TO DISPUTE

RAILROAD DIVISION, TRANSPORT WORKERS UNION

OF AMERICA, A. F. of L. - C. I. O.


THE PITTSBURGH & LAKE ERIE RAILROAD COMPANY AND

THE LAKE ERIE & EASTERN RAILROAD COMPANY


DISPUTE: CLAIM OF EMPLOYES: On June 3, 1959 Car Inspectors 'Hanlon ad Hart received notices stating that they were given five (5) days suspended sentence for failure to release hand brakes on cars from Mahoning State line on May 13, 1959. The notice also states that in the event of any further violation or infraction of any rules on the part of these men before May 4, 1960 that these men will be required to serve this sentence. The organization feels that this sentence is improper as these men were not given proper protection to release hand brakes. The organization feels that the carrier was not abiding with Rule 36 of the present agreement. The organization requests that the carrier rescind the sentence given these two men.


EMPLOYES' STATEMENT OF FACTS: This case was handled on the property of the carrier and is known as Case Y-128.


That master mechanic-car in his answer to the organization stated that he could not see any reason for the employes to use blue flags when releasing hand brakes, yet Rule 36 states that when work is being done on cars blue flags will be used.


That the Railroad Division, Transport Workers Union of America, AFLCIO does have a bargaining agreement, effective May 1, 1948 and revised March 1, 1956 with the Pittsburgh & Lake Erie Railroad Company and the Lake Erie & Eastern Railroad Company covering Carmen, their Helpers and Apprentices (Car & Locomotive Departments).


POSITION OF EMPLOYES: That it is improper for the carrier to require employes to perform work without blue flag protection when we do have a rule that calls for protection of employes working on cars.


That at the investigation the carrier did not prove that the brakes were on the cars as stated by the carrier and it is possible that the brakes were set by the train crew after the inspectors had inspected the cars.



4035-9 4556

The assessment of discipline is a prerogative of management and every Division of the National Railroad Adjustment Board has consistently refused to substitute its judgment for that of the carrier and has refused to interfere in any way with a carrier's disciplinary action provided the action taken was not without cause and was not in bad faith. Excerpts from a few awards of the Second Division in connection with this principle are set forth below:










CONCLUSION: The carrier has conclusively shown that Claimants Hanlon and Hart were found guilty of the charge presented against them and were properly disciplined for their failure to fulfill the responsibilities of their positions as car inspectors. In view of the nature of the offense the disciplinary action taken by the carrier was most lenient and did not exceed the limits of sound managerial discretion.


Awards of the Second Division, National Railroad Adjustment Board have been cited in support of carrier's position.


Carrier submits that the request for removal of discipline from the records of the claimants is without merit and should be denied.


FINDINGS: The Second 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.




On June 3, 1959, Claimants were given five days' deferred suspended sentence for failure to release hand brakes on May 13, 1959, with the proviso that the suspension would be placed in effect in the event of further violation or rule infraction before May 4, 1960. That period having passed without such charge, the only effect of a rescission of the discipline would be to remove the matter from Claimants' service records.


The Position of Employes is: First, that the carrier cannot properly require the performance of this work without blue flag protection; and second, that it was improper to prefer two charges against these employes in one notice of hearing.

4035-10 457
 ~As for the latter objection, the Agreement contains no requirement for
 separate notices of violations claimed, but provides only that the employe will
 be apprised in writing of the charge against him. The additional charge is not
 claimed or shown to have prejudiced Claimants in any way; it was their failure
 to report a drop car open, which was included in the notice and in the heading ' i
 of the hearing reeord, but was not mentioned in either the investigation or the
 suspension order `No objection was made at the hearing, and at its conclusion
 both Claimants conceded that it had been conducted in a fair and proper man
 ner in accordance with the Agreement. Consequently, even if the Agreement
 had been violated and Claimants' interests thereby in some way affected, the
 objection would have been waived.
 The question of blue flag protection is not shown to have been raised at
 the hearing, and in any event would have been irrelevant. It might have r
 become material if Claimants had admitted the non-performance of their duties
 and sought to excuse it because of blue flag protection required by the Agree
 ment and requested but denied them.
 But Claimants' testimony was that they had fully performed their work,
 without any attempt to excuse a default because of the lack of protection.
 The claim is not sustained by the record.
 AWARD
 Claim denied.
 NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of SECOND DIVISION
 ATTEST: Harry J. Sassaman
 Executive Secretary

 Dated at Chicago, Illinois, this 13th day of July 1962.