Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8337
SECOND DIVISION Docket No. 82+5
2-BNI-FO-'80
The Second Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered.
( System Federation No. 7, Railway Employes'
( Department, A, F. of L. - C. I. 0.
Parties to Dispute: ( (Firemen & Oilers)
(
( Burlington Northern Ino.
Dispute: Claim of Employer:
1. Under the current controlling Agreement, Mr. D. L. Daniel, hostlerhelper, Havre., Montana was unjustly dealt with when suspended for a
period of five
(5)
days of actual service from the Burlington
Northern, In*.
2, That, accordingly, the Burlington Northern, Inc. be ordered to
compensate Mr. D. L. Daniel for all time lost at the pro rata rate and
any reference to this incident stricken frown his records
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 Tune 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.
On February 72,
1978,
there was an uncoupling between Engine No. 24+ and
Heater Car No.
661
on Amtrak No. 8 out of Havre, Montana. The uncoupled portion
of the train eventually caught up with the engine, ramming it and causing a
derailment of the engine and two heater car units. Mr. D. L. Daniel (the
claimant) a hostler helper at carrier's Havre, Montana, shop, was working with the
hostler responsible for putting the power unit together and getting it ready to
pull the train out of Havre, An investigation of the uncoupling and derailment
was held on February 21,
1978,
As a result of that investigation, the olaimant was found to be derelict in
his duties in riot;meking sure that the coupling between the engine and the
heater car was properly locked and secure. The carrier assessed a five-day
suspension and placed a note of censure in the claimant's personnel file. The:
organization alleges that the claimant was improperly ,penalized and that the
carrier had not proven, by credible evidence and testimony, that the claimant
was responsible for the uncoupling and subsequent derailment. The accident
took place fit-teen miles from Havre on a cold, snowy, winter day. The organization
claims carrier based its discipline on suspicion and not on the facts.
Form 1 Award
No.8337
Page 2 Docket No, 8245
2-BNr-FO-'80
The Board is here confronted with a claim in which the organization charged
that the carrier did not carry its burden of proof in fixing the responsibility
for the uncoupling of the train on the claimant. Carrier relied on the testimony
of the two uninterested expert witnesses who claimed that if the locking blocks
on the coupler were properly closed and locked, it would be impossible for the
train to uncouple, as it did in this case. No defects were found in any of the
parts of the coupler on the engine or on the heater car.
A11 witnesses, including the claimant, testified that it would be impossible
for the train to separate if the couplings were properly made and locked.
Testimony also revealed that if the lock block was only partially in place, the
train mold be pulled for a long period of time. Vibrations or some other motion
occurring while the train was in motion could then cause the lock block to wane
out of the coupling and separate the train. Absent any other probable reason to
cause the train to come uncoupled (other than the lock block popping up) the
carrier concluded that the employees who initially gut the power unit together
were derelict in their duties and failed to make sure that the lock block on the
heater car was completely dawn and locked and the coupling between the engine
and the heater car was secure.
Carrier has arrived at its conclusion in this case based on circumstantial
evidence, a process of deduction that places the blame for the uncoupling of the
train sqmrely on the claimant.
The organization offered no plausible explanation for what took place to
refute the testimor~y given by the expert witnesses or to challenge the validity
of the carrier's conclusion. It is well established by the board, as well as in
other arbitration forums and in the courts, that circumstantial evidence is a
valid basis on which to support a charge. Based on the record before it and
having taken judicial notice of Award No. 3, Public Law Board No.. 2317, this
Board must deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSZTV= BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
. C.r'
By
~~einarie Brasch - Administrative Assistant
Dated (/at Chicago, Illinois, this 16th day of April, 19800