Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7921
SECOND DIVISION Docket No.
7681
2-N&W-CM-`79
The Second Division consisted of the regular members and in
addition Referee Arthur T. Van Wart when award was rendered.
( System Federation No. 16, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
1.. That the Norfolk and Western Railway Company violated the
controlling agreement when it unjustly assessed Cayman Stephen G.
Tsocheff a five (5) day deferred suspension on November
4,
1975,
which Carrier reaffirmed on December
31,
1975, aver investigation
held November 20, 1975.
2. That the Norfolk and Western Railway Company violated Article V
of the August 21, 195+ National Agreement and Section 2 of the
Railway Labor Act when Car Foreman R. L. Brown arbitrarily engaged
in the processing of the claim on the property.
3.
That the Norfolk and Western Railway Company be ordered to remove
the five (5) day deferred suspension from the service record of
Cayman Stephen G. Tsocheff.
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 21,193.
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 had been employed by Carrier for same fifteen (15) years. He
was regularly assigned as Cayman Stenciller at the paint tracks at Carrier's
Car Shop
in
Brewster, Ohio. While in the process of stencilling a car,
on October 25th, a five
(5) gallon
can, on which Claimant had been standing,
tipped,
causing him
to injure his
ankle
at Vbout
8:30
FM. There were no
disabling effects therefrom. Claimant reported said injury and its
circumstances to his foreman some two hours later.
Form 1 Award No.
7921
Page
2
Docket No.
7&81
2-N&W-CM-'79
The Car Foreman, R. L. Brown, on November
4, 1975,
assessed Claimant a
five (5)
day deferred suspension for "violation of Safety Rule 1028 on
October 27,
1975".
Said Rule reads:
"Standing on improvised scaffolding or support made of
boxes, barrels, chairs, etc. is prohibited."
The Employes, pursuant to Rule 13(D) of the current Schedule Agreement
made written request for a formal investigation. It was held November 20,,
1975.
The General Foreman conducted said investigation. The Car Foreman,
R. L. Brown, as a result of that hearing advised Claimant "that the five
(5)
day deferred suspension will stand on your record".
Appeal therefrom was registered with the Assistant Car Foreman. Said
appeal was denied by Car Foreman Brown. The subsequent appeals to the
General Forman, Master Mechanic and Vice President-Administration was also
denied.
Schedule Agreement Rule 13 (D) reads
"An employee .., and is ... or otherwise reprimanded, will
be apprised of the precise charge against him and shall
have a fair and impartial hearing, provided written request
is presented by the man or his authorized representatives
to the official who ... or reprimanded him, within ten
(10) days of the taking of such disciplinary- action ....
_ , appeals taken shall be in accordance with paragraph
(A) of this Rule 13,
'r
Said paragraph (A) in pertinent part, reads:
"_
, the decision may be appealed ,., to the higher
officials designated to handle such matters, each in his
respective order ..."
The officials so designated at Brewster are: "Assistant Car Foreman -
General Foreman - Car and Master Mechanic - Car.
Article V of the August 21,
195
National Agreement provides:
"A11 clans and grievances must be presented in writing by
or on behalf of the employee involved, to the officer of
the Carrier authorized to receive same .,. should any
such claim or grievance be disallowed, the Carrier
shall.
'r
Foam l Award No. 7921
Page 3 Docket No. 7681
2-N&w-CM-
'79
There is merit to some of the Employees procedural contentions. Here,
Car Foreman Brown, on November
4,
1975 assessed the discipline complained
of. He preferred the charge for the investigation November 17, 1975. Car
Foreman Brown was a witness at the November 20th investigation. He
reviewed the record of that investigation, including his own testimony,
and on December 31st, Car Foreman Brown re-affirmed his previous assessment
of discipline. Lastly, Mr. Brown denied the appeal of such discipline,
addressed to the Assistant Car Foreman, in his (Bxoem's) name. While the
fact that Mr. Brovm was not the hearing officer on November 20th and thus
partially distinguished his conflicting roles from those reflected in the
Awards cited in support of the Employees' contention, the fact remains that
the judgmental and appellate role were here so intertwined as to make a
nullity of the discipline assessed and its appeal.
In the circumstances this claim will be sustained.
A W A R D
Claim sustained.
NATIOTT:4Z RAILROAD ADJUSTME11T BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
BY
Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 16th day of May, 1979.