Form l NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7978
SECOND DIVISION Docket No. 787-9
2-N&W-CM-'7g
The Second Division consisted of the regular members and in
addition Referee Bernard CusYanan when award was rendered.
( System Federation No.
l6,
Railway Employes'
( Department, A. F. of L. - C. T. 0.
Parties to Dispute: ( (Carmen)
(
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
1. That under the current working agreement Carman John J. Marcisz,
Jr. was unjustly assessed a five
(5)
day deferred suspension by
the Carrier on August
6, 1876,
as a result of investigation held
July
13, 1976,
at ChicaEp, Illinois.
2. That the Carrier be ordered to remove the five
(5)
day deferred
suspension froze the service record of Carman John J, Marcisz, Jr.
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
disxsate 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 is a Caiman employed by the Carrier at Chicago, Illinois,
on the Carrier's Western Region where the Carrier facilities include a repair
track and extensive inbound and outbound yards. There is also a ramp at
Chicago at which.truck trailers are loaded on flat cars for shignent to
distant points. On May
2g., 1g76,
the claimant loaded and secured a trailer
TTCC
4967
on car iiX
1571.71.
The car left Chicago loaded with the trailer
and traveled to Detroit, Michigan. Prior to arriving at Detroit, the car
and trailer were "htmiped" and made part of train CD-14, allowed to stand in
Calumet yard, Chicago, and then higtibaZl.ed to Detroit where the car and
trailer were allowed to stand in the yard. The distance between Chicago
and Detroit is in excess of
250
rail miles. Carrier officials claim that the
trailer z~ras shifted and the hitch was unlocked upon arrival at Detroit. A
statement by the General Car Foreman at Detroit was made a part of the record
of the investigation in which the General Car Foreman stated that the car in
question arrived at their EOFC dock on June 1,
1976
with the B Hitch unl.oched.
Form l Award No. 7978
Page 2 Docket No. 7818
2-N&W-CM-`79
The trailer on the B Hitch had slipped forwarded out of hitch, a distance
of approxinately 3 feet. The General Foreman claimed that the king pin
locking indicator was in the unlocked position and that an inspection of the
hitch revealed no defects.
The claimant eras charged with improper perfonnance of his duties and
after the holding of an investigation the Carrier assessed the claimant a
five day deferred suspension against his service record, on August 6, 1g76_
The claimant alleged that he was unjustly dealt with within the meaning
of Rules 32 and 33 of the Working Agreement. At the formal investigation, the
claimant testified that the hitch was in fact locked when the car left the yard.
The Carrier takes the position that a trailer if properly secured cannot
came unlocked in transit and that its position is supported by certain
articles in the Organization's Journal.
The Organization contends that the claimant is not responsible for the
negligence with which he was charged, pointing out that, among other things,
the car had traveled to Detroit, Michigan, and the lack of evidence to
indicate that there were no intervening factors. The organization argues
that if the trailer had not been properly secured under the circumstances a
mishap would surely have occurred before the arrival of the car at Detroit.
This case appears to be substantially on all fours with a case previously
decided by this Board, Award No. 641g, between the same parties. In that
case the Board stated:
"In the instant case, the claimant, a Car Inspector, was
charged and found guilty of negligence. He was alleged
to have failed to properly check whether a trailer was
securely locked onto a flat car and held responsible
for the subsequent mishap when the trailer fell. or rolled
off the flatcar. A ten-day suspension of record was
assessed against him.
The Carrier put great stress on the alleged infallibility
of the equipment used to secure trailers onto flat cars and
that, if properly locked, it could not become undone in
transit. It avers that the trailer was not properly
secured when claimant was supposed to have inspected the
car and its contents and only his failure to inspect or
follow the proper procedure caused the dangerous misadventure and loss. Disregarded was the fact that the
trailer came loose approximately three hundred miles
from the lard where the inspection was to have taken
place and the possibilities for intervening forces or
factors which might have came into play during the time
the flat car traversed the distance from claimant's
station to the point where the trailer became disengaged
and detrained."
w
Form l Award No. 797$
page 3 Docket No. 7819
2-N&W-CM-'79
The Board held that the record did not meet the standards of the
substantial evidence Rule and found that the discipline assessed could not
b e held to b e just and proper. The Board feels constrained in a case between
these same parties to follow its own decision on substantially similar facts.
Accordingly, the Board holds that the discipline assessed against the
claimant was not just and proper.
A W A R D
Claim sustained.
NATION RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: hxectztive Secretary
National Railroad Adjustment Board
By
::dl
Brasch -Administrative Assistant
Dated a~ Chicago, Illinois, this 20th day of June, 1979·