Form 1 NATIONAL RAn,ROAD ADJUSTMElV'T BOARD Award No.
7349
SECOND DIVISION Docket No. 7252
2-A&S-CM-'77
The Second Division consisted of the regular members and in
addition Referee James C. McBrearty when award was rendered.
( System Federation No.
2,
Railway Employes'
( Department, A. F of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
( Alton & Southern Railway Company
Dispute: Claim of Em loyes:
1. That Carman Robert Muncy was unjustly treated by the Alton and
Southern Railway Company when said Railroad dismissed him on
September
4, 1975.
2. That, accordingly, the Alton and Southern Railway Company be ordered
to reinstate this employe with seniority rights unimpaired and
compensate him at Carmen's pro rata rate for all time lost, plus,
six per cent
(6%)
interest for all wages deprived of. Also, fringe
benefits (vacations, holidays, premiums for hospital, surgical,
medical and group life insurance) deprived of since September
4,
1975,
until advised on February
5, 1976,
that he was being reinstated
to service and instructed to. report for work to protect his seniority.
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.
Claimant is a Carman working at Carrier's East St. Louis, Illinois,
Humping Yards as a Car Inspector on the 11:00 PM to 7:00 aM shift. He has
approximately seven (7) years and four
(4)
months seniority.
On August
22, 1975,
Claimant was notified to appear on August
26, 1975,
for a formal investigation "to develop the facts and place responsibility,
if any, for your reported failure to properly perform your duties in connection
with the handling of Car
i~T'
352665
at or about 12:01 AM, August 20,
1975.'1
Form 1 Award No.
7349
Page
2 D2cA&S-CM-·7752
The investigation was postponed until
9:00
AM Wednesday, September
3, 1975.
On September 4,
1975,
Claimant was notified by Carrier that effective
that date he was being dismissed from service of Carrier "for failing to
perform the duty of your assignment on August 20,
1975."
On February
5, 1976,
Claimant was notified by Carrier that he was being
recalled to service as of that date because "we feel the discipline has been
duly served."
The background facts in the record before us indicate that on August
20,
1975,
Claimant occupied the position of Carman assigned at the Crest of the
Carrier's East St. Louis :-lump Yard. An important part of the duties and
responsibilities assigned to the occupant of this position is the inspection
of cars for defects or conditions which would make them unsafe for movement
over the Hump and through the retarders into the classification tracks in
the Bowl Yard. When such defects or conditions are observed, the Carman is
required to notify the Hump Yardmaster before permitting the movement of such
cars over the Iiump.
During Claimant's tour of duty, approximately
12:01
AM, August 20,
1975,
Car MP
352665,
which had been inspected by Claimant, was humped into track
number
039,
which was clear at the time. The retarders were unable to control
the speed of MP
352665,
recorded by the Hump Yardmaster at 16 m.p.h. coming
out of the retarders. As a result, the car ran out the west end of track
039
and into the side of a cut of cars on the Tweet Lead, after which it derailed,
fouling track
038.
The humping operation was stopped immediately and an inspection was made
of the retarders and the car, whereupon a white substance (later identified
as ferrous copper sulfate) was found caked on the wheels, undercarriage, and
ends of car MP
352665.
The same substance was found on the retarders.
Claimant states that he did not observe arty of this substance on the
flanges of the wheels, and therefore thought the condition of car NLP
352665
would not impair its control through the retarders. Claimant also states that
he did not fail to comply with General Order No. 14 dated January 1,
1975,
which requires the reporting of cars that have grease on the inside and
outside of the wheels.
Before turning to the merits of the instant case, however, Petitioner
has alleged throughout the handling of this case on the property and before
this Board that Carrier violated Article V(a) of the August 21,
1954
Agreement.
Form 1
Page
3
Award No.
7349
Docket No.
7252
2-A&S-CM-'77
Article V(a) of the August
21, 1954
Agreement provides as follows:
"(a) All claims or grievances mast be presented in writing by or
on behalf of the employe involved, to the officer of the Carrier
authorized to receive same, within 60 days from the date of occurrence
on which the claim or grievance is based. Should any such claim ox
grievance be disallowed, the Carrier shall, within
60
days from the
date same is.filed, notif whoever filed the claim ox grievance
the employe or his representative in writing of the reasons for
such disallowance. If not so notified, the claim or grievance shall
be allowed as presented, but this shall not be considered as a
precedent or waiver of the contention of the Carrier as to other
similar claims or grievances." (Emphasis added)
It is beyond dispute that Superintendent Needham gave no reasons for his
denial of the Local Chairman's claim in his letter to the Local Chairman dated
November 14,
1975.
Moreover, it was not until February
9, 1976
that D. M.
Tutko, Chief Mechanical Officer gave reasons for the Carrier's denial of the
claim in his letter to the General Chairman. This was well beyond the 60-day
limit prescribed in Article V(a) of the August
21, 1954
Agreement.
The pertinent language in Article V(a) is clear and unequivocal in
the event of failure to timely notify whoever filed the claim in writing of
the reasons for such disallowance. Accordingly, we have no alternative but
to sustain the instant claim exce-ot for the awarding of six
(6)
percent interest
and fringe benefits. (See Second Division Awards
5512, 4594,
and
3312;
Third
Division Award
9933).
We have no jurisdiction or authority to sustain the
claim for insurance premiums or interest.
A W A R D
Claim sustained to the extent indicated above.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By~
`r
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 8th day of September,
1977.
Ai - , .-
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