The Second Division consisted of the regular members and in
addition Referee Charles W. Anrod when the award was rendered.
SYSTEM FEDERATION NO. 6, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Carmen)
DISPUTE: CLAIM OF EMPLOYES: (1) That under the current agreement, Carman J. P. Keeter was unjustly dismissed from the service of the Carrier on July 14, 1960.
(2) That accordingly, the Carrier be ordered to restore Carman Keeter to service with all seniority and service rights unimpaired and compensate him for all time lost retroactive to July 14, 1960.
EMPLOYES' STATEMENT OF FACTS: Carman J. P. Keeter, hereinafter referred to as the claimant, entered the service of the Chicago, Rock Island & Pacific Railroad, hereinafter referred to as the carrier, on March 24, 1923. On June 26, 1960, Claimant was working his assignment as car inspector in the train yard at Liberal, Kansas, assigned hours of 8 A. M. to 4 P. M.
At about 3 P. M. June 26, 1960, train No. 94 derailed at Pratt, Kansas. Under date of June 29, 1960, the claimant was instructed by written notice from Superintendent J. F. Orlomski that an investigation would be held at Pratt, Kansas at 9 A. M., Tuesday, July 5, 1960, "to develop the facts, discover the cause, and determine your responsibility, if any, in connection with derailment of Train 94."
The investigation was held as scheduled with the carrier calling two witnesses, Messrs. E. J. Gwin and S. C. Oswalt, and the employes called four witnesses, Messrs. Walter E. Smatherman, Vernon E. Ralston, H. J. Wriston, L. C. Fuller. Mr. A. L. Francis was also called as a witness.
It should be noted that the four witnesses called by the Employes are not named on the first page or top of page 2 of the hearing record.
Following the investigation, the claimant was notified by letter dated July 14, 1960, that ". . . your employment with this company and any and
Now, because any one of the above-outlined procedures were readily available to Keeter and because our rules and special instructions require Keeter to follow such procedures and because this serious accident could have been avoided had Keeter done his job in any one of the above-outlined ways, the carrier submits that Keeter's dismissal from service was fully justified.
Keeter's failure was serious. Keeter's failure was individual, and certainly could not be treated lightly. Keeter knew then and Keeter knows now as well as all employes know that prompt, complete compliance with all rules and special instructions are required under circumstances similar to those present at Liberal when Train 94 started out without an air test. The carrier believes that this accident shocked all Rock Island employes and hopes that none, including Keeter, will ever forget it, nor will any carman, including Keeter, ever again be found guilty of such total neglect as Keeter was on this particular day. For your Board's attention, Mr. Keeter was returned to the service of the Rock Island Railroad on April 17, 1961 based solely upon the fact that the carrier felt that Mr. Keeter had learned his lesson from this horrible accident, and would, in the future, comply promptly with all rules and special instructions.
The Carrier submits that it has been extremely lenient with Carman Keeter and the discipline assessed him and urgently requests that your Board upholds the action taken by the carrier which was fully justified by the facts recorded in the formal investigation.
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.
The Claimant J. P. Keeter was employed as a Car inspector at the Carrier's Liberal (Kansas) yard. On June 26, 1960, he was assigned to make an air test on train 94, a fast moving freight train, which arrived at Liberal at 11:30 A. M. He commenced making said test. However, before he was able to complete it, the train started moving and left Liberal at 12:05 P. M. It approached Pratt, Kansas, at approximately 3:00 P. M. When fireman G. E. Pritchett, who operated the lead engine, attempted to slow the train before entering a passing track, the brakes failed to hold properly. Brakeman H. D. Nunn, Jr., who was seated in the cab of the engine, pulled the emergency brake valve but the brakes again failed to slow the train. It entered the 15 m.p.h. turnout at a substantially higher speed. A derailment occurred in which 49 cars were destroyed resulting in a loss of more than $500,000.
asotlm °zaqajt:dsip jaiqa atl; of pal.zodaa antal plnoa au jutp ao 'Sq at;au .8uiput;Ts sum tlaiqm aui9ua qaqims ail jo oipt;a aqq 2uisn Sq l,6 uit;aj jo aaaui.8ua ail palat;Tuoa ant;q plnoa qustuislD aq3 4nq4 smoqs paoaaa aq4 °aaouzaaqT,in,l
'IAI'd LO: 3T lnoqs 3t; lfpusua o3 3.xodaa pip quumiulD aq4 qt;qq 2uipttg a a-lt;uz of alqt;un alt; am 'aauapina .8ui;aiguoa aq4 jo main ul '(601 `LOT 'dd `'piqi) Spssua o3 aa44t;l aq4 ~&q apt;uz ~lpa2alls 4aodas aqj pauaqaano aq quql uopualuoa s,3ut;uzitao aq4 @4uaoqoaaoa o4 palit;j st;q siautca,l `aanoaaoW '(OOI `86 'dd `*piqi) uziq oT 3aodaa aq4 apum ;usuziu[0 atlT Tuq4 paittap Slluatao2ajt;a st;q Spt;suE) '(09 `82 'hg dd _`g_ Tiqiqxa s,uopt?ziuu.,9.zb) 3aodas sitl4 azaq oq q.dnoua at;au 2uipuujs su.vi SIJUETA -, V aluuqaauz aa4suuz qutC3sissU 1sq4 sqaassu oslu al3 -apum sum 4sN alt; ou IMP `*w*d L0: ZT Tnoqt; 1s ao °tlaunl aoj quam aaTTt;l ail aaojaq Spssua -Z -Z uumpual asa of paqaodaa aq 4uq4 spua4uoa jusmiulo ally
-1sa4 art; ut; 3noqlim .Suqat;dap st;m 41 quill pazilsaa aq uatlm umaT aqj dogs o4 sda;s alquuosuaa lln a-p,4 ao aoi.aadns siq oT Taodaa off. Alaimp -atutue palt:8ilqo sum ;ustuielD aqT 1eq1 °aanamoq 'paindsip aq SIptIt;n 4OUUHa 41 ·auolu 4umuislo aq4 Tou pun saSolduta It;.aanas 10 laud aq4 uo ssauantjuallt; -ui so uoijnuI
.qtuoa t; Aq pasnua sum 4uapiaate aq4 p3tIT alndsip puoSaq osin sl 41 loj4uoa siq puoAaq suosuaa aoj jsaaqirl tuoaj pa;Audap usual aq4 juq1 pun aalaava aq4 jo sa~foldtua aaqjo Sq U031BI UOT1313 Sq uoi4sanb ui 4sal am aq4 .Buiqaldmoa uxoa; paluanaad st;.a luump;lD aq4 3t;qj pa;ndsipun si 41
:suoisnlauoa .2ui -molloj aqj patlauaa ant;tl am `ast3a siq4 o3 saldiaupxd anoqn aq4 8uisIddV
.uoiTul.zod -sut;al aps apinoad o1 uopn2ilqo p2al s,.aaiaat;D aq4 puu aan4nu snoll.aad s4i 3o asnsaaq Sa;snpui puoalit;a asp of dlluagpads sailddu sitly -a4t:Ts 1t; aat; spzt:zuq Slaps ao a;il uuuznq aaatlm astea Aus ui axtnil2in put; aqua jo aaa2ap tuntuixstu t; anaasqo o4 'suoilana4sui ao salnz lioildxa qnoq4im put; diqsuop -t:laa aSoldma-aaSoldma atll Jo anjain Aq Slalos 'pale2qqo 911u.Taua2 si aSold -WE) its' aanamol-I -TI .SuiAltapun spuj agiaads aqq jo sissq atll uo asua qaua ui paulmaa;ap aq dllunsn isntu a:Foldtua uu jo paqaadxa ao paainbaa aqua jo aaa.8ap atl3 `suoilunqis junpul uani2 UT suolIt;laVn apim atlT ;o asnsaag '(gg6I) 999 `6g9 'Ta 'S E8 '8TT `801 'S 'll ZLE `Susdmoo puoaliujj oiqp put; aaotui4lt;g 'n 3lailluD :aaS 'saauu4stunaala anlituts aO OU-19S ails. aapun asn plnom ATiae2us pus aauapnad fauuipao jo aldoad tlaiqm aauuli2in put; 'uopnuaaad 'aria ;o aaa2ap 4stll ansasqo of aanlpj atll si aaua2il2au Clans jo aauassa aqZ -aaua2 -il2au sa4n4j4suoa Sliauuip.xo uopu2ilqo siq4 4aauz of a.anliud -aAoldma ut; uodn uopu.Bilqo pigs asodmi o1 fiaussaaau si salna 2uplaom aip io 4uauiaai2u ioqLl aqj ui uoisinoad llaildxa ou 'aauag -ditlsuopulaa aSoldma-aaSoldma ail ui paildmi si satlnp siq ;o aauuuxaopad aq4 ui aat:o alqLuosuaa anaasqo of uop -t:.8ilqo s,a&olduxa us quip pal3Tas Altuag si suopulaa Toqul ;o mrl aq,L '1
'T961 `LT I?adV 03 `096T `VT Alnjr -oil polaad atll aoj uopusuadmoa aoj 4sanbaa s,Tuteuziula asp si sn a.zojaq uztula Sluo atlT '3lnsaa a sV :Isol atoll zoj uoilt:suadmoa qnoqllm 4nq T96I `LI IiadV 3o ss ani4aa1Ja °slq.'Jla &41a0luas llnj qqrm quumiulD aq4 pa4u4sut-as aaijat;a aq4 °aalp -aaaqy -uoisinia siq4 03 aausnala2 aq4 pa.taajaz uoijnziuu2ap OL14 pus aaut;nata2 aq4 paluap aalaatvD aqy -1sol ami3 Ilia xoj uoilvsuadtuoa qjim put; paap:dtut -un s4q2l.z Ilt: trim juatuaqt:Tsui-as palsanbaa ag -passimsip AITsnfun st;m aq 3uq4 papua4uoa aq qaiqm ui aaut'nala2 4ut;1sui atll palU JUBniiaD al,L '4saI al. un 4noqlim IsaaqiZ 1;al putt 41 punoj al Taljv- uiea4 dogs 04 U014as a3lu3 04 palit;l (li) put; 'IVu2iS aiV put; sa3lt;ag aiV uiVay jo uopuzadp asp UT saSold -uzH 2uluaanoD suopanalsuj put: salnjj aqj jo salnz pagiaads uit;qaaa pa4BIOIn (i) aq pq4 punoa2 ail u0 `0961 `hT glnf 3o Ss ani4aajja 'aainaas s4i uzo.zj
office was about twenty car lengths away, that the train had left without an air test. The Claimant took none of those steps, although he was admittedly aware that he could have taken them (ibid., p. 63). Actually, he did nothing to prevent a possible accident until Casady returned from lunch at about 1:00 P. '-VI., or approximately one hour later after the train's departure, at which time he reported to Casady that no air test teas made. This belated report does not excuse his initial failure promptly to report to his superior or take all reasonable steps to stop the train as soon as it left Liberal.
In summary, we are satisfied that the Claimant failed to observe that degree of care, precaution, and vigilance which was justly demanded by the circumstances and which a reasonably prudent person would have taken in the light of the obvious seriousness of the situation. His failure to do so constituted gross negligence.
2. The Claimant argues that trains had left Liberal without an air test on several occasions. This argument is besides the point. Even if one assumes that other employes were also negligent in the performance of their duties, this fact in no way absolves the Claimant in the instant case. He also asserts that the Carrier never advised him or any other carmen what they should do in a situation such as the one here involved. The flaw in that assertion is that no special instructions are necessary to the effect that an employe shall observe a reasonable degree of care, precaution, and vigilance.
3. The right of the Carrier to discipline the Claimant in the instant case cannot be doubted. We have consistently held that a Carrier's disciplinary action can successfully be challenged before this Board only on the ground that it was arbitrary, capricious, excessive or an abuse of managerial discretion. See: Awards 4000, 4098, 4132, 4195, and 4199 of the Second Division. We are of the opinion that the Claimant's suspension without pay for the period from July 14, 1960, to April 17, 1961, was not based on such unreasonable grounds. He did not merely commit an excusable error in judgment, but was guilty of gross negligence. His suspension was a fair exercise of the Carrier's managerial discretion. Accordingly, we hold that he was not unjustly suspended from service within the contemplation of Rule 34 of the applicable labor agreement.