Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8637
SECOND DIVISION Docket No. 8438
2-C&NW-FO-'81
The Second Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. That in violation of the current Agreement, Mr. Gregory Price, laborer,
Chicago, Illinois, was unfairly dismissed from service of the Chicago
Northwestern Transportation Company, effective August
4,
1978.
2. That, accordingly,the Chicago Northwestern Transportation Company be
ordered to restore Mr. Gregory Price to service with seniority rights,
vacation rights and all other benefits that are a condition of employment,
unimpaired with compensation for all lost time plus 6% annual interest,
reimbursement of all losses sustained account loss of coverage under
Health and Welfare and Life Insurance Agreements during the time held out
of service, and the mark removed from his 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 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.
Gregory Price, a laborer in carrier's employ, was dismissed from service for
not wearing safety goggles while working as fuel man fueling locomotives on July
18,
1978.
Carrier argued that claimant had been disciplined on two previous occasion;
for the same safety rule infraction. He has not learned from those encounters
with discipline. Thus, dismissal is the only course left to Carrier.
Carrier also argued that the original claim was untimely filed, and consequently,
the claim should be dismissed.
The organization argued that claimant took off his safety goggles in order
to see the fuel gauge on the locomotive. He did not wish to overfill the tank and
spill fuel. It also maintained that carrier's argument that the claim was not
timely filed cannot be considered by the Board because it was not presented on the
property prior to the organization filing its intention to submit an ex parte
submission to this Division of the Board.
Form 1
Page 2
Award No.
8637
Docket No.
84-38
2-C&NW-FO-'
81
This Board has carefully reviewed the procedural argument presented by carrier
and must conclude that the opportunity for carrier to raise a procedural argument
was prior to the time petitioner filed its intent to submit an ex parte submission
to this Division of the Board. This Board is not anxious to dispose of claims on
procedural or technical grounds. We do, however, support the concept that procedures
outlined in agreements should be strictly adhered to.
In the instant case, carrier responded at each step of the procedure without
any indication that it considered the claim untimely filed. Its acquiescence,
together with the fact that carrier did not make the argument until petitioner had
moved the ~°ase to the Second Division of the Board, more than supports the decision
that the case should be decided on its merits.
The record on the merits of this case clearly indicates that claimant did
violate the rules by not wearing his safety goggles while fueling engines. This
board is mindful of claimant's poor record on this identical point and his reluctance
to learn from prior discipline. Based on this record, we do not, however, think
that claimant should be separated from his employment on a permanent basis.
But
claimant should not construe the Board's decision as in any way condoning his
propensity to ignore safety rules.
Claimant should view this decision as a new chance to become a worthwhile
and cooperative employe and make a special effort to steer clear of rule infraction
This Board would not look favorably on future problems of this type involving
claimant.
A W A R D
Claimant shall be returned to work with all rights and benefits, but with no
compensation for time lost.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
BY
/ semarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 25th day of February, 1981.