Form 1 NATICNAL RAILROAD ADJUSTMENT BOARD Award No.
8501
SECOND DIVISIQN Docket No. 8382
2-BNI-CM-'8o
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
( Brotherhood Railway Carmen of the United
( States and Canada
Parties to Dispute:
(
( Burlington Northern Inc.
Dispute: Claim of Employes:
1. That the Burlington Northern, Inc. improperly placed an entry of
censure on the personal record of Havelock Shop Carman Helper W. H.
Bell as a result of formal investigation held on March
6, 3.978.
2. That the Burlington Northern, Inc. be ordered to remove entry
of
censure from the aforesaid carman helper's personal record.
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 Rail-,,;ay 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.
An investigation was held on March
6, 1978
to determine Claimant's
responsibility in connection with his alleged failure to ccmply with proper
instructions per Burlington Northern Safety Rules 65(a) and 66(c) on February 24,
1978.
These Rules are quoted hereinafter for ready reference:
Rule
65
Employees must:
"(a) Expect the movement of train, engines, cars, or other
moveable equipment at any time, on any track, in either
direction."
Rule
66
Employees must not:
"(c) Rely on others to warn them of the approach of moving
equipment, but instead, be alert for their own safety."
Claimant was later apprised by letter, dated March 22,
1978
that an entry of
censure was placed in his personal record for his failure to comply with the
aforementioned rules and this disposition was appealed.
Form 1
Page
2
Award No.
8501
Docket No.
8382
2-BNI-CM-'80
In reviewing this case, we agree with Carrier that the r:otice of investigation
was sufficiently worded to permit Claimant the opportunity to prepare an
intelligent and coherent defense. We find no procedural irregularities in the
record. Claimant testified that he was familiar with Safety Rules 65(a) and
66(c).
He testified that he did not stop the trackmobile at the crossing and
as a result, it was struck by a moving freight car. We recognize, of course, that
accidents are sometimes caused by factors other than the negligence of the
operator. But we find in this instance, no mitigative evidence to support
Claimant's assertions that the lighting at the crossing and the trackmobile's
mechanical condition contributed to the accident. When the sequence of events
is objectively examined, we find no evidence that he could not have stopped the:
vehicle in a timely and safe fashion.
Correlatively, we are mindful of Claimant's unblemished work record, but
it does not counterbalance and negate the import of the charged specifications
herein. Safety is a matter than cannot be considered lightly in the railroad
industry. The penalty of censure was not unreasonable and, in fact, under the
circumstances of this case was mild, when the dimensions of the accident are
considered. The trackmobile was caught on the freight car and dragged between
150 and
175
feet. Surely this was not an insignificant event. It could have
resulted in Claimant's death or physical and mental impairment. In Second
Division Award
7941
involving an analogous fact situation, we held in pertinent:
part:
"The finding of the hearing officers that the Claimant was guilty
of the offense charged was supported by substantive evidence of
probative value. Considering the seriousness of the violation,
in that it could easily lead to loss of life, we do not find the
fourteen (14) day suspension to excessive."
We find the rationale of this holding on point with this case and as such, we
are compelled to deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTffENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
'
By f
°°'F;osemar%e Brasch - Administrative Assistant
Date/at Chicago, Illinois, this 19th day of November, 1980.