Award No. 5244 Docket No. 5121
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee David Dolnick when award was rendered.
DISPUTE: CLAIM OF EMPLOYES: 1. That the discipline assessed against Warren H. Nothstein, carman helper, February 4, 1965, was improperly arrived at and represents unjust treatment within the meaning of Rule 37 of the controlling agreement.
2. That the Carrier accordingly be ordered to rescind the discipline imposed and remove same from his service record.
EMPLOYES' STATEMENT OF FACTS: On September 22, 1964, the claimant received personal injury while on duty at Packerton Shop.
Under date January 26, 1965, the claimant received the following notification:
On January 27, 1965, a question and answer statement was taken from the claimant in connection vaith the above notification.
In letter dated February 4, 1965, the claimant received the following notification from C. C. Treese, Supt. Car Equipment:
The Organization in Award 4792 used the same argument herein made the carrier's position was upheld.
From the above it can be seen there is no merit to the contention of the Employes that the discipline rule was not complied with. If the fact of charging an individual with precise ,rule violation or responsibility for an incident were to be held as invalidating a disciplinary hearing, it is obvious that no discipline could ever be administered when the rule requires that the employe be notified of the charges against him.
In conclusion Carrier submits there is substantial and convincing evidence in the record to show that claimant was guilty of the matter charged with and that the Carrier did not act arbitrarily or abuse its discretion in reaching that conclusion on the basis of the whole record. The reprimand discipline given was not harsh, arbitrary or excessive. Claimant conceded he had been properly notified of the investigation, he also announced at the hearing that his local chairman would represent him.
It is for these reasons a clear and admitted failure to comply with the safety rule as developed in a hearing and investigation, conducted as required by the current agreement, the resultant discipline which must be viewed as. neither unjust nor harsh but which was actually lenient under the circumstances that the carrier respectfully requests that this claim be denied.
Carrier affirmatively asserts that all data used herein has been discussed with or is known by the Employes.
Oral hearing is not desired unless requested by the Employes. (Exhibits not reproduced)
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.
Claimant, an employe since Jul,,,- 13, 1920, was disciplined to the extent of a formal reprimand for violating Safety Rule 4260. Specifically, he was charged with negligence and disregard for his safety when he sustained a compound fracture of his index finger on his right hand on September 22, 1964. He was notified to appear for a hearing and investigation to determine his responsibility for the injury.
A formal hearing was held on January 27, 1965. Claimant was present and he was represented by his Local Chairman.
Employes contend that the notice of investigation did not contain the specific Rule which the Claimant allebedlg violated. Thus. he could not defend against the charge that he violated Safety Rule 4260. The notice requested the Claimant to appear "in connection with your alleged injury sustained by you September 22, 1964, at 8:05 A. M., Packerton Shop. To determine your responsibility, if any, in this matter." This is sufficient and adequate notice required in Rule 37. Claimant was advised of the "precise charge" to determine his responsibility, if any, for the injury. It is not necessary to cite each and
every applicable rule. He had every opportunity to present witnesses in his behalf and he was properly and fully represented at the hearing with every opportunity reserved for him and his representative to examine and crosse::ar_zine witnesses. He specifically stated that the "hearing and investigation (was) held in a fair and impartial manner and in accordance with schedule agreement." Carrier fully complied with Rule 37.
Claimant was asked at the investigation to tell in his own words just what happened at the time of the injury. He said:
But Mr. Mertz testified that at the time of the injury he "was standing on the outside of the car", that he did not "see the reservoir strike Mr. Nothstein's finger" and that he "had his back turned when it happened."
The reservoir weighed 259 pounds. It was hazardous for any one person to handle it. Yet, the record is clear and convincing that the Claimant proceeded to do so in disregard for his own safety and in violation of Safety Book Rule 4260. A formal reprimand is justified. It was not arbitrary, capricious or unreasonable.