Form 1 NATIONAL RAILROAD ADJUSZfitENT BOARD Award No.
8556
SECOND DIVISION Docket No.
8353
2-NRPC-EW-'81
The Second Division consisted
of
the regular members and in
addition Referee Gilbert H. Vernon when award was rendered.
( International Brotherhood
of
Electrical Workers
Parties to Dispute:
(
( National Railroad Passenger Corporation
Dispute: Claim of Employes:
1. That under the current Agreement, Electrician R. Evans was unjustly
suspended by the National Railroad Passenger Corporation (Amtrak) when
effective March
13, 1978,
he was assessed seven
(7)
days
of
suspension.
2. That accordingly, the National Railroad Passenger Corporation be ordered
to pay all wages lost on account of the suspension and that his service
record be cleared of the charge.
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,
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.
At the time of the suspension, the claimant was employed as an electrician
and had approximately three years seniority.
On February
15, 1978,
carrier elected to notify claimant to appear at a
hearing at 1:00 p.m. February 24 regarding the following charges:
"Violation of Rule K of the National Railway Passenger
Corporation Rules of Conduct by vour failure to (attend
to your duties) during working hours by improper
workmanship on two SM-150 E.A.R.B. Safety Regulators on
Car
Y;'-5403
on February 2 and
3, 1978."
Exhibit "A".
Rule K reads as follows:
"Employees must report for duty at the designated time
and place, attend to their duties during the hours
prescribed and comply with instruction from their
supervisor. "
Form 1 Award No.
8556
Page 2 Docket No. 8353
2 -NRPC -EW-' 81
Initially the organization argues that the charges should be dismissed because
the hearing was procedurally defective. It was defective, they contend, because
the hearing was recessed or postponed three times in violation of Rule 23(b).
Rule 23(b), argues the organization, limits to one the number of postponements
for a hearing. The carrier on the other hand argues that the organization
waived their right to make this objection when they failed to make such objection
during the course of the hearing. In reviewing the transcript, the Board cannot
find any evidence of an objection to the recess or postponement of the hearing.
As such, the Board concludes the procedure is sound and we will consider the case
on its merits.
On February 2 and 3, the claimant was assigned to a position that was to
inspect, and if necessary overhaul, regulator panels such as the ones in question.
It was customary for employees in the claimant's position, upon completion of
a regulator, to apply an inspection sticker bearing their initials to the panel.
This sticker indicated the regulator was ready to be tested. The testing of
the regulators was done by another employee, in this case a Mr. W. J. Kemp.
This testing was done before the regulator was installed in a car. If the
regulator didn't test out for any reason the panel was usually returned to a
repairman such as the claimant.
To
support the charges that Mr. Evans failed to properly overhaul the two
regulator panels in question, the carrier points to the testimony of Foreman
James Rhodes. Mr. Rhodes testified that the first regulator, which he had
instructed the claimant to overhaul, was found to be defective. This was
discovered when it was installed in car
;=5403.
He detailed all the various
aspects of the regulator which clearly established that it was not in working
condition. He also testified that the second regulator panel was returned because
the mechanic who was to install it noticed that this regulator was also not in
working condition.
There is little doubt that 'the regulators in question were not in a
functioning condition when they were delivered to the car to be installed. As
a matter of fact, this is not really made an issue by the organization. The issue
is whether the claimant was responsible for the regulators going to the car when
they weren't in proper working condition.
In reference to the first regulator, the Board cannot say that there is
substantial or sufficient evidence to conclude that the claimant was responsible
for it going to car for installation in an improper manner. In regards to the
first regulator, the claimant contends that it disappeared from the work bench
before he had completed his work on it. There is considerable evidence to
support this defense. First of -all, it was clearly established that his sticker
had not been applied to the regulator. :,<r. R'.1odes, the Foreman, had noted this
fact in his testimony. Further, Mr. Evans testified that it is his customary
procedure to apply the sticker only after overhauling a regulator. Secondly,
Mr. Kemp, another electrician, testified that he removed the regulator from Mr.
Evan's bench "thinking it was ready for testing". As noted earlier Mr. Kemp
was the employee responsible for testing the regulators after they were overhauled but before thev were sent to the cars for installation. Kemp further
testified that Mr. Evans had not commented to him as to the status of the
Form 1 Award No.
8556
Page
3
Docket No.
8353
2-NRPC-Ew-'81
regulator panel. While it might seem unusual for regulators to disappear before
a repairman is finished with them, Mr. Evans further testified that panels have
previously been removed before ha finished them. Another employee's testimony
(Mr. Steinbuch) collaborated Mr. Evans on this point. Steinbuch testified that
as a repairman he had similar experiences. Further support for the claimant's
position is found because his testimony and the testimonies of Mr. Kemp and
Mr. Steinbuch stands unrefuted in the record.
The carrier argues that it is not true the regulator was removed from Evans'
bench without Evans' knowledge. In their rebuttal they contend that the claimant
was present at the time Mr. Kemp removed it from his bench and that there was a
conversation at that time during which the claimant had every opportunity to
indicate to Kemp that the panel wasn't ready for testing. In reviewing Mr.
Kemp 's testimony, the Board notes that Kemp testified he did have a conversation
with Evans about the panel. However, Kemp testified only that Evans told him the
panel was a "rush" job. The hearing officer's questioning and the resultant
testimony of Kemp is not clear or precise enough to determine if the conversation
took place at the time Kemp removed the regulator panel from Evans' bench. There
is the distinct possibility that it took place at a time before or after the
panel was removed from Evans' beach by Kemp. As a result, Mr. Evans' contention
that the regulator panel was removed from his bench without him knowing it is
still plausible and remains effectively unrefuted by the carrier. As a result,
the Board cannot find that there is substantial evidence to support the charge.
It was not shown by the carrier, as it is their burden in this case, that it was
any fault of Mr. Evans that the first regulator panel went to the car for
installation before it was in proper working order. The fact that the panel was
removed from his bench without his knowledge was beyond his control. Further, the
fact that the employee who did the final testing on the panel released it even
though it was defective was also beyond his control.
Regarding Mr. Evans' responsibility in connection with the second regulator
panel going to the car before it was in working order, we find similarly that this
too was no fault of his.
The union argues that claimant was responsible for the regulator going to the
car in an improper condition because he was told to "blow off" the regulator by
his foreman, Mr. Rhodes.
The transcript established that a "blow off" is a procedure used by a
repairman when a panel is needed in a hurry. It is a short cut whereby the
repairmen doesn't tear down a panel to inspect it but only blows off the dust,
touches it up with paint and then releases it for electrical testing. The
rationale for this procedure according to Foreman Rhodes is that not all regulator
panels need to be completely torn dozan and overhauled. In the interest of time,
sometimes a cursory inspection is done and the unit is electrically tested.
Any problems not noticed in the "blow off" will be caught when the unit is tested.
Form 1 Award No.
8556
Page 4 Docket No.
8353
2-NRPc-Ew-' 81
The union's argument is that it was not Evans' fault that the defective panel was
sent to the car because he was told not to tear it down and that he was not
responsible for testing the regulator.
Mr. Rhodes, testifying before Evans, indicated he had not given Evans any
special instruction such as telling him to perform a "blow off" procedure on the
second panel. The testimony of Mr. Evans and Mr. Rhodes conflicts in regards to
whether Evans was told to "blow off" the second panel.
The Board's function in discipline cases is well established. It is not the
Board's function to act as the initial trier of facts. It is not our function
to weigh the evidence or to resolve credibility issues or conflicts in testimony.
Nor is it our function to substitute our judgment for that of the hearing officer.
Our function as an appellate body is to review the transcript to determine if the
evidence as a whole meets the requisite burden of proof. The requisite burden
of proof on the carrier is that the charge must be supported by substantial
evidence.
In reviewing the evidence as a whole it cannot be concluded that there is
substantial evidence to support the hearing officer's conclusion as related to
the second regulator. There is simply too much evidence to suggest that Evans
was in fact told to do a "blow eff" on this regulator panel. we believe this to
be true for several reasons. First, it was clearly established that the panel
was in a condition that would indicate a "blow off" was executed by Evans. The
panel was present at the hearing and was inspected by Mr. Steinbuch, another
repairman, and Mr. Yeller, a tester. They both testified that the panel had been
blown off. Secondly, both Steinbuch and Keller testified that "blow offs" were
frequently done. Further, Evans and Keller both emphatically stated that "blow
offs" are only done when so directed by a supervisor. The testimonies of Steinbuch,
Keller and Evans remained unrefuted in the transcript. Lastly, we also note
that Mr. Rhodes admitted telling another repairman to perform "blow offs".
The Board finds further validity in the clairmnt's defense. Because "blow
offs" were frequent in cases where panels were needed in a hurry, it wasn't
unreasonable for Evans to rely en the employee executing the electrical testing
procedure. The testing procedure was often relied on to indicate if anything
had been overlooked in the cursery "blow off" procedure. If there was anything
per _se wrong with executing a "blow off" on a panel and relying on the test
procedure then it is hard to understand why the carrier's supervisors frequently
direct employees to do them.
The fact that the second panel went to the car for installation in an
improper working condition cannot. be said, under the circumstances, to be the fault
of Mr. Evans. There was an intermediate step between his function and the
installation of the panel. The defects should have been detected at the test
step which was not Evans' responsibility.
In view thereof, the Board finds there is not substantial evidence for
supporting either charge and the claim will be sustained.
Form 1
Page
5
A W A R D
Claim sustained.
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
8556
Docket No.
8353
2-NRPC-EW-181
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Bos marie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 7th day of January,
1981.