Form 1 YATIONAL RAILROAD PDJUSTTTNT BOARD Award No.
8236
SECOND DIVISION Docket No.
8092
2-MP-NBA-' 80
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
( International Association of Machinists and
( Aerospace Workers
_Parties to Dispute:.
(
( Missouri Pacific Railroad Company
Dispute: Claim of Emaloyes:
1. That the Missouri Pacific Railroad Company violated the controlling
Agreement, particularly Rule 32, when they unjustly dismissed Machinist
E. P. Sparr from service on January l7, 1977 for allegedly failing to
properly perform the duties of Machinist inspector when ins-Pecting Unit
1915
at approximately 5:00 a.m., December
23, 1976,
specifically, failing
to report defects in the securement of gear cases.
2. That accordingly, the Missouri Pacific Railroad Company compensate
Machinist E. P. Sparr at the pro rata rate of pay for each work day
beginning January
17, 1977
until he is reinstated to service. In addition,
he shall receive all benefits accruing to any other employes in active
service, including vacation rights and seniority unimpaired.
3.
Claim is also made for Machinist E. P. Sparrts actual loss of payment
of insurance on his dependents and hospital benefits for himself, and
that he be made whole for pension benefits, including Railroad Retirement
and Unemployment Insurance.
4. In addition to the money clamed herein, the Carrier shall pay Machin_st
E. P. Sparr an additional sum of
6%
per annum compounded annually on the
anniversary date of said claim in addition to any other wages earned
elsewhere in order that he be made 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 Juu1e
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.
An investigative hearing was held on January
12, 1977,
pursuant to Agreement
Rule
32
to determine Claimant's responsibility, if any, in connection with his
alleged failure to report defects in the securement of gear cases on Unit 1915 on
December
23, 1976
at North Little Rock, Arkansas. Claimant was subsequently found
Form 1 Award No.
8236
Page 2 Docket PTo.
8092
2-I~-t.-' 80
guilty of failing to perform properly the duties of Machinist inspector and
dismissed from service, effective January 17, 1977. This disposition was appealed
on the property and is presently before us for adjudicative consideration.
In reviewing this case, we have carefully scrutinized the investigative
transcript to ascertain objective7;~- whether a specific cause, effect relationship
existed between Claimant's purported failure to inspect appropriately Unit 1915
and the derailment which occurred later that day at Longview, Texas, some 230
miles from North Little Rock, Arkansas.
While a defensible presumption exists, especially based upon the Master
Mechanic's testimonial reconstruction of the incident, that Claimant was perhaps
negligent in his inspection, we do not think that it provides a conclusive assessment of the derailment. Instead, it reflects a speculative analysis which is
predicated solely upon circumstantial evidence.
On the other hand, except for the Machinist Helper, who lubricated the
traction motor gear case on Unit,1915 and who testified that he did not see any
defects in the securement, there were no other eyewitnesses who personally e-x--,,,i:Ln-d
the equipment that night or knew of any defective condition. The discipline
v-.S
imposed primarily upon theoretical considerations.
This Board has consistently held as a matter of administrative due process
that the burden of proof in disciplinary proceedings rests exclusively, ,upon the
employer. It is a fundamental tenet of the judicial process. We have rejected
persuasive assertions structured upon suspicioas circumstances. 1n Second Division
Award
6419,
we held in pertinent part that, "The best that can be said in favor
of the Carrier is that there exists a suspicion that the Claimant .may have been
negligent. !;!ere suspicion is not sufficient to prove that he ccrZIitted the offense
for which he was discharged." We believe this principle is foursquare on point
with the facts herein. (See also Second Divisions 7172, 5572 and
4928.)
Accordingly, we are compelled by the record to compensate Claimant for all tire
held
out of service in accordance with Rule 32. However, there is no basis for pavrent
of hosvital and/ cr inau_; encr beefits as outlined in part
3
of this claim, nor is
there any basis for
the interest
requested in part ?+ of the claim.
A W A R D
Claim sustained as set
forth in
the findings.
ITATI®NAL RAII-ROAD ATJMTI= BOARD
By Order of Second Division
Attest: Executive Secretary
~.------N ional Railroad Adjustment d
By
t''~.-.9p
~s.4--.-a's''~
Rosemarie
Lrasch
- Auninwstrative Assistant
Dated at Chicago, Illinois, this 16th day of January
1980.