Foam 1 NATIONAL RAILROAD ADJUSfNIENT BOARD Award No. $025
SECOND DIVISION Docket No.
7991
2--CR-EW-
'79
The Second Division consisted of the regular members and in
addition Referee Her'bsrrt L. Marx, Jr. when award was rendered.
( System :Federation No_ 100, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute:
( (Electrical Workers)
(
(Consolidated Rail Corporation
Dispute: Claim of Employes:
That under the current agreement Electrician Edward G. Schwarz
has been unjustly disciplined by the Consolidated Rail Corporation
and unjustly held out of service thirty (30) actual days following
a hearing held at Hornell, New York on September
?_9, 1977.
2. That accordingly the Consolidated Rail Corporation be ordered to
vacate all the discipline assigned against Edward G. Schwarz and.
restore to him all 'pay daze him from the first day he was held out
of service until the day he is returned to service, at the applicable
electrician's rate nor each day he has been improperly held from
service; and all -benefits and pay due Min under the Regional Rail
Reorganization Act of
1973;
and all benefits due him under the
group hospital and life insurance policies for the above mentioned
period.; and all railroad retirement benefits due him including
unemployment and sickness beizefits due him for the above described
period; and a31 other, benefits that would normally accrue to him
had he been working in the above described period in order to
make him whole.
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.
This dispute centers on the events taking place following the tow of
locomotive unit EL-364 in train NY-72, without having been properly set for
such towing. The consequence was that, while en route from its departure
point, the engine with several cars ran array and resulted in the derailment
of two cars.
Form 1
Page 2
Award No. 8025
Docket No. 7991
2-cR-Ew-'79
The Claimant herein, an Electrician at Hornell,, N.Y.., was made the
subject of an investigation on "alleged charges of improper inspection of
Engine
364
for tow an September 19, 1977."
Following the hearing, Claimant was assessed
30
days actual suspension
"for responsibility in connection with improper inspection of Engine
364
and preparing same for tow on September 19, 1977."
The Organization argues that the disciplinary penalty was based on
charges not identical with the charges on which the Claimant was notified
that he would be investigated. The Board finds merit in this argument and
determines that the dispute rests solely on proof of "improper. inspection",
as in the pre-hearing letter off.' charge.
Claimant defends his position by stating that he was merely asked if
Engine No.
364
was "O.K."; that he consulted a lag book which so stated;
and that he answered his supervisor in the aff:izmative. The supervisor, on
the other hand, stated he asked Cla.ir_awt; if the Engine was "0_ K. to go"
and that the Claimant replied affirmatively. The Carrier takes the thcr
position that the Claimant -was aware that the engine was going to be towed,
based on a previous log entry which the Claimant himself had made, and that
his affirmative reply to the supervisor was in error in that the Claimant
had failed to inspect the engine to see if it -vras in proper set-up for tow.
Communication between supervisor and Claimant may have been less than
explicit. The Board, however, finds the Carrier's position reasonable that
the Claimant could have been expected to give more than a perfunctory reply
to his supervisor. To determine if the engine was "0. K." or 0. K. to go",
it is not unreasonable to expect that the Claimant would reply in terms of
whether or not the engine was ,ready for tow -- and he would have had to
check the engine (i.e., inspect it) to determine this. This he failed to do,
and therefore must bear some responsibility for the outcome.
,.4 W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By f ~=P
7~ - ~,~ - -
Ro ,ma ie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 1st day of August, 1979.