Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7283
SECOND DIVISION Docket No.
7173
2-WT-CM-t77
The Second Division consisted of the regular members and in
addition Referee David P. Twomey when award was rendered.
( System Federation No. 106, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
( The Washington Terminal Company
Dispute: Claim of Employes:
1- That under the current agreement, Car Cleaner, David
M.
Barletta,
was unjustly dealt with when he was dismissed from the service
of The Washington Terminal Company effective September
3, 1975.
2-
That accordingly The Washington Terminal Company be ordered to
return Car Cleaner, David M. Barletta, to the service of the
Carrier with seniority and vacation rights unimpaired and
compensate him for all time lost since September
3, 1975.
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.
Parties to said dispute waived right of appearance at hearing thereon.
The Claimant, Car Cleaner David M. Barletta, was employed by the
Carrier on September 2,
1974.
On November
15, 1974,
he cut his middle
finger on a Metroliner door; this was a lost time accident of
8
days. On
January
18, 1975,
he bumped his head on a platform; this was a lost time
accident of
3
days. On February 2,
1975,
he was involved in an accident
with a moving locomotive; this was a lost time accident of
156
days. On
July 19, 1975,
while vacuuming a coach he hurt his back; this was a lost
time incident of
24
days. Cn August
19, 1975,
the Claimant was ordered
to appear for a hearing based on the charge that negligent responsibility
on his part caused the four personal injuries to the Claimant. A hearing
was held on Wednesday, August
27, 1975.
The Claimant was found guilty as
charged on September
3, 1975,
and dismissed from the employment of the
Carrier.
Form 1 Award No. 7283
Page 2 Docket No. 7173
2-WT-CM-'77
The Organization contends that the Hearing officer prejudged the case.
The Organization contends: that negligent responsibility was not shown on
item no. 1; that the Carrier created the unsafe condition in item no. 2;
that item no. 3 is now in litigation and that there is no conclusive evidence
on this point; and that as to item no. 4 the Claimant's back problem was
connected to injury number
3
and not an injury at all.
The Carrier contends the hearing was fairly and properly conducted and
that the evidence presented against the Claimant did substantiate the
charges.
We find that the statement of Mr. Woods, the Hearing Officer, found
on page
7
of the transcript, that
"... we
don't need such information to
prove our case" was improper. Mr. Hoover, the General Chairman, said it
very well when he stated: "You are supposed to be as much devoted to this
man's side as you are to the Company's side". We find from the entirety
of the record that this remark was not prejudicial to the outcome of
Claimant's case. The Claimant was very ably represented by both the
General Chairman and his COnm:-tteeman. The Claimant and his representatives
were given every opportunity to question the Carrier's witnesses at the
hearing. They had full opportunity to present the Claimant's position as
they saw fit.
We find that substantial evidence in this record establishes that the
Claimant was guilty as charged. Concerning item no. 1, Mr. McPherson, the
Assistant Master Mechanic and the Claimant's Supervisor, testified that if
the door had been properly operated, the Claimant would not have cut his
finger; and the evidence shows that he had been instructed in the proper
manner for operating the door (Employes' Exhibit "C"). As to charge no.
2, the Claimant was clearly negligently responsible for bumping his head
on -the platform. On charge no.
3
Mr. McPherson testified that he personally
investigated the event. He testified that the Claimant told him that he did
get off the Coach he was in to urinate, and, when he did, the electric
motor struck him (Tr-11). While Mr. Barletta chose not to testify because
this matter was pending in litigation and his attorney was not present,
he did so at his peril (Tr-21 and 22). We have read his statement to the
General Claim Agent (Carrier's Exhibit "J"), and find only that there is
substantial evidence in the record to support the finding of negligent
responsibility for this injury, which resulted in theloss of 156 days.
Concerning Event No. 4, the record shows that the Claimant did report a
back injury on July 19, 1975, while vacuuming a coach and as a result did
not report back to work for 2'4 days. The Claimant did not state to anyone
on July 19, when his back started to hurt him while vacuuming, that it was
a reoccurrence of the February 2, 1975, injury (Tr-19). It is not
unreasonable for the Carrier to expect an employee to be able to vacuum a
coach without injury to his back to such a degree as to lose 24 days work,
and at least an element of lack of due care, in the extremely narrow context
of this record, can be considered to be present in this case, especially
where there is no showing of lack of safe tools or safe working conditions.
Form 1
Page 3
Award No. 7283
Docket No. 7173
2-WT-CM-'77
From the entire record before us, we find that the dismissal of the
Claimant from the service of the Carrier was not arbitrary, capricious or
excessive. We shall deny the Claim.
A
W A R D
Claim denied.
Attest: Executive Secretary
National Railroad A3justment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By~
arie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 5th day of April, 1977.