Form 1 NATTONAL RAILROAD ADJUSTMENT BOARD Award No. 71 80
SECOND DIVTSION Docket No. 70n4
2-BN-CM '76
The Second Division consisted of the regular members and in
addition Referee Herbert L: Marx Jr. when award was rendered.
( System Federation No. 7
Pa
rties to Dispute: ( Railway Employes' Department
( AFL-CIO - (Carmen)
(
( Burlington Northern Incorporated
Dispute:
Cla i.m of Employes:
1) That: the current agreement, particularly Rule 35 (c) was
violated because of lack of spcei.fi.c charges when Carmari
D. E. Hogan was given notice of a formal investigation,
held on May 20, 1974, resulting in unreasonable and
caprici.oizs assessment of censure on his personal record
and being withheld from service for fifteen (15) clays.
2) '('hat because of such violation and capricious action,
Carrier be ordered to remove such fifteen (15) da,,,
record suspension rrom his record and reimbursement
'-o said employe for the fifteen (15) days of stlspensi_llr:.
Findings:
The Second Division of the Adjustment board, upon the whole
record and all the evidence, Firds
brat:
The carrier or carriers and the employe or employes invnlved in,
this dispute are respectively carrier and employe within the meaning of
the Railway Labor Act a s approved .Tune 21 , 1934.
This Division
of the Adjustment Board has jurisdiction over the
dispute involved herein.
farti_es to said dispute waived right of appearance at heari.ni-;
thereon.
Claimant received a suspension from service of fifteen days
for "violation. of Rules A, Y, D, F, 77, 661, 662, 667, 16 and 17" as
formulated and issued by the Carrier. Involved in particular was
crossinz; between. cars in an unsafe manner, when an alternative method
was readily available, and the use of improper type working shoes. As
a result of his actions, Claimant suffered an ankle injury when stepping onto an uneven section of asphalt flooring.
Claimant contends a number of improprieties in the conduct of
the investigation. This Board finds no merit in these allegations.
Form 7 Award No. 7280
Page 2 Docket No. 7004
2-BN-CM ' 76
The notice of investigation states as its purpose, "developing the facts
and placing responsibility for your alleged injury." The consideration
that the notice does not specify " our responsibility" does not relieve
the Claimant of the foreknowledge that the investigation might, indeed,
fix responsibility on him. Further, it is not pertinent that the notice
did not refer to the specific safety rules of the Carrier which were
found to be violated by the Claimant. Carrier -properly referred to
the specific rule violations after full investigative hearing, and
could hardly be expected to enumerate them prior to development of the
facts during the hearing. A review by this Board of the record of the
hearing discloses that it was, contrary to Claimant's contention, a
full, fair and unbiased proceeding.
The record further shows that Claimant violated certain rules
of safe working procedures, and this Board sees no reason to secondguess the Carrier in its findings of such violations.
It appears, however, that the Carrier's degree of disciplinary
action was not reasonable in relation to the offense. Claimant has a
record of 26 years of service, and there was no showing in the record
of an adverse history of compliance with safety regulations.
This Board finds that the penalty given to Claimant as a
corrective measure was excessive. As stated in Award No. 6600(Sctiedler),
"It appears to this Board that there must be some established practice showing a reasonable relationship between
discipline assessed for negligent injuries and that these
penalties would bear some relationship to the frequency of
injuries and the seriousness of the injury."
This Board finds the penalty in the instant case excessive
and that a suspension of service for five days would have been justified. Claimant is to be made whole for loss of time worked for the
last. ten days of his suspension.
A W A R D
Claim sustained to the extent of reducing the penalty to
five days.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
norm 1
Pa ge 3
Attest: Executive Secretary
National Railroad Adjustment Board
By:
_` . ~__
Itos ,ar.ie Brasch
- Administrative Assistant
Dated at Chicago, Illinois, this 30th
day of
November, 1976.
Award No. 7180
Docket No. 7004
2-BN-CM ' 7f,