Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7877
SECOND DIVISION Docket No.
782.
2-C&Nw-CM- · 79
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System Federation No.
76,
Railway Employes,
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Chicago and North Western Transportation Company
Dispute: Claim of I~nployes:
1. Freight Car Repairman D. D. McAtee was unjustly assessed ten (10)
days deferred suspension on April
6, 1977.
2, Freight Car Repairman D. D. McAtee was erroneously charged with
his responsibility in connection with injury incurred by Mr.
J. D. Adkins on March 1,
1977.
3.
That the Chicago and North Western Transportation Company be
ordered to remove the ten (10) days deferred suspension from
Freight Car Repairman D. D, NIcAtee's file.
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,
1931.
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 was assessed a ten-day deferred suspension upon the Carrier's
determination that he had responsibility "in connection with injury incurred
by Mr. J. D. Adkins at the Council Bluffs repair track at 10:1+5 a.m. on
March 1,
1977,
while you were operating a fork lift".
There is no dispute that the fork lift truck operated by the Claimant
did strike Adkins, causing him injury. Claimant was operating the fork
lift in reverse direction, carrying an iron rod. He claimed that the fork
lift "swerved" and that he took .preventive action so that Adkins was not
hit by the rod and that he also "yelled" at Adkins to warn him. Although the
rod did not strike Adkins, the fork lift itself did so, pinning him underneath
the truck. Claimant admits that he did not blow the horn on the truck as
a warning.
Form 1
Page 2
Award No. 7877
Docket No, 782+
2-C&NW-CM-'
79
Principal defense of the Claimant and the organization is that the
brakes on the fork lift were defective. The record shows considerable
dispute as to whether or not the brakes were properly operative at the time
of the accident. The record shows, however, that the Claimant was able to
operate the brakes and that, if he was aware ef s,~;r brake deficiencies, he
was in a position to take necessary precautions in operating the vehicle.
There is no finding of deliberate misconduct on the part of the
Claimant. On the other hand., the penalty levied by the Carrier (a ten-day
deferred suspension) was of a moderate nature. The Board sees no basis on
which to disturb the penalty.
The Organization raised a number of procedural objections to the conduct
of the investigative hearing. The hearing was exhaustive in nature, and
the Board finds no substance to the objections, and there was full
opportunity for the Claimant's defense to be made.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
.~t semarie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 28th day of March,
1979.