Form 1 NATIONAL RAILROAD
ADJUSTMENT
BOARD Award No.
8557
SECOND DIVISION Docket No.
8354
2-NRPC-EW-181
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, W. J. Kemp was unjustly
suspended by the National Railroad Passenger Corporation (Amtrak),
when on March 20,
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.
The claimant was employed as an electrician with
15
years seniority at the
time of his suspension.
On February
15, 1978,
Claimant was directed to attend a formal iraestigation
into his alleged violation of Rule K of the Carrier's Rules of Conduct. Rule K
reads:
"Fniployees must report for duty at the designated time and place,
attend to their di_ities during the hours prescribed and comply
with instruction from their supervisor."
The charge was made in connection with the claimant's alleged improper workmanship
and inspection on two "SM-150 E. A. R. B. safety regulators from car
#5403
on
February 2 and
3, 1978."
Form 1 Award No.
8557
Page 2 Docket No.
8354
2-NRPC-EW-181
From the outset, the organization argues the discipline must be set aside
because of a procedural defect. They point out that the hearing was held beyond
the time limits provided for in the agreement. Without passing on the merits of
this argument it must be noted that this objection was not made at the hearing.
It is well established that procedural objections such as the one being made here
must have been made at the hearing or the organization is considered as having
waived their right to make the objection before the Board.
Safety regulator panels such as the two in question are regularly inspected
and tested by the claimant. He does so after the panels are worked on by a repairman and before the panels are installed in cars. As part of the normal procedure
in handling these regulator panels, the repairman puts an initialled sticker on
a panel when he finishes it, signifying it ready for testing. It is also normal
procedure that the employee who does the testing, such as Mr. Kemp, also puts an
initialled sticker on the panel signifying it is ready for installation.
The two panels in question were definitely found to be defective. The
testimony of Mr. Rhodes, Foreman, leaves no doubt that both panels were in an
inoperable condition when attempted to be installed in car
5403.
In reviewing the evidence to determine if Mr. Kemp was responsible for the
panels being in an inoperable condition, it is the Board's conclusion that there
is substantial evidence to support the charges. The claimant's action in departing
from normal procedures was responsible for the panels going to the car, before
they were properly tested. As noted above, the normal procedure is for the
inspector, such as Mr. Kemp, to :inspect and test the panel and if the panel tests
as operable the inspector is to apply his work sticker to the panel. This
signifies it is ready for installation. However, the transcript reveals through
a clear admission by the claimant that the panels were not serviceable at the time
he applied his inspection sticker. The procedure as accomplished by Mr. Kemp was
strictly contrary to normal procedure.
The claimant's defense essentially was that although he applied his stickers
before the panels were determined to be operable, he didn't intend for the panels
to go to the car until he had tested them. He contended that he did not release
them and that "someone must have rezmved it, seeing the test sticker on it".
If we are to believe Mr. Kemp, then this is not really a defense as much as it is
a precise explanation as to
why
the panels went to the car in an unserviceable
or inoperable condition. The fact that Mr. Kemp applied his sticker before the
inspection and testing procedure was complete led the person
who
picked the panels
up, Lo ~:~yieve the panels were cleared for installation. The purpose of the
stickers procedure is obviously to prevent this kind of thing. Clearly, had
Mr. Kemp followed standard procedure, the incident would in most probability not
have occurred.
The organization also argued that the panels could have been damaged in
transport to the car. However, there is no evidence to support this assertion.
Form 1
Page
3
Award No. 8557
Docket No. 8354
2-NRPC-EW-'81
In reviewing the question as to whether the amount of discipline was
appropriate, we note that although the claimant was initially given a seven-day
suspension he was returned to cxrk after only 5 days. We cannot say that a
5-day suspension for an offense of this nature is arbitrary or capricious.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTr1ENT BOARD
By Order of Second Division
..ar~'~"` . 3
,.Roiemarie Brasch - Administrative Assistant
Dated it Chicago, Illinois, this 7th day of January, 1981.