Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No. 8672
SECOND DIVISION Docket No. 8499
2-BNI-CM-'81
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Burlington Northern Inc.
Dispute: Claim of Employes:
1. That Burlington Northern, Inc. violated the terms of the controlling
Agreement when Division Superintendent G. W. Saylor did not set forth his
reasons for denying this claim in letter to Local Chairman Bullock dated
September 12, 1978.
2. That in violation of the current Agreement, Upgraded Carman M. D. Kastainek,
Alliance, Nebraska, was unjustly suspended from service for a period of
five (5) days, August 4 through August 8, 1978, and a mark of censure was
placed on his personal record following hearing held on July 7, 1978.
3. That accordingly, Burlington Northern, Inc. be ordered to compensate the
above named upgraded carman eight (8) hours pay at the pro-rata rate for
each of the above mentioned five (5) days, August 4 through August 8,
1978. Further, that the Burlington Northern, Inc. be ordered to remove:
the mark of censure from Upgraded Carman M. D. Kastanek'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 fn 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.
Following an investigative hearing, Claimant was given an "entry of censure" on
his record and a five-day~disciplinary suspension for the following reasons:
"Violation of Rules 535(e) and (f) and 537 of the Burlington
Northern Safety Rules for your failure to operate vehicle
in safe manner, failure to exercise care to prevent accident
and failure to comply with posted signs by operating vehicle
in red flagged area, resulting in Vehicle 5601 being struck
by Switch Engine 6194 at approximately 3:45 A.M., June 26,
1978 at Alliance, Nebraska while assigned as Carman at that
location, as disclosed by investigation accorded you July
7, 1978,
11
Form 1 Award No.
8672
Page 2 Docket No.
81+99
2-BNI-CM-181
The Rules referred to above read as follows:
"535. Driver must:
Exercise care to prevent accident and injury to
driver and others by observing all conditions.
Comply with legal posted speed, signs, and signals,
and make complete stop at all stop signs."
"537. Motor vehicles must be operated in a safe manner regardless
of the urgency, or importance, of the mission."
The undisputed facts are that the Claimant, a Carman who was "doubling over"
for a second successive shift to work as a Coach Cleaner, drove a Carrier vehicle
around a red-flagged gate and across a track. The vehicle was struck by an oncoming
switch engine, causing damage to the vehicle.
The Organization raises two procedural matters in this dispute which require
resolution prior to consideration of the merits of the claim. These have to do with
the Carrier's alleged failure to comply with Rule 34(a) in respect to the Carrier's
initial claim response and an allegation of the lack of a fair and impartial
investigation owing to certain witnesses not being called for testimony by the
Carrier.
Rule 34(a) reads in pertinent part as follows:
"...
Should any such claim or grievance be disallowed, the
Carrier shall, within sixty (60) days from the date same is
filed, notify whoever filed the claim or grievance (the
employee or his representative) in writing of the reasons for
such disallowance. If not so notified, the claim or grievance
shall be allowed as presented, but this shall not be considered
as a precedent or waiver of the contentions of the Carrier as
to other similar claims or grievances."
The Division Superintendent's response to the initial claim letter reads in
full as follows:
"Referring to your letter of September
S, 1978,
re. Carman
M. D. Kastanek who was suspended from the service of
Burlington Northern, Inc. for five (5) days from August 4,
1978
to August
8, 1978
inclusive for violation of Rule 535(e)
and (f) and 537 of the Burlington Northern Safety Rules
pursuant to investigation accorded him July
7, 1978.
This is to advise that your request that Mr. Kastanek be made
whole as provided in Rule 35(g) and that censure be removed
from his record is hereby respectfully declined in its
entirety."
Form 1 Award No.
8672
Page 3 Docket No.
8499
2-BNI-CM-'81
It is the Organization's contention that this letter fails to give "the reasons
for such disallowance", and thus the claim should be "allowed as presented".
A long line of awards has dealt with the adequacy of the Carrier's responses
under this or similarly worded rules. While these awards are not unbrokenly
consistent, the gist of the cases is that the proven failure of the giving of any
reason, implied or otherwise, will lead to a sustaining award, as in Award No.
337.2 (Bailer); on the other hand, the form and nature of the reason is interpreted
minimally, as in Third Division Award No. 21342 (Cables) which states:
"This Board has consistently ruled that no particular form or
language is required to be used in denying a claim or giving
the ~ reasons for denial. Awards 10061 (Daly),
14761
(Ritter),
14CY+o (Dorsey), 14864 (Ives) and many others."
Whether or not the Division Superintendent's answer in this case meets the
criterion of the rule depends on the particular circumstances.
The original letter from the Organization stated the cause of the claim as
"doubt" concerning the "fair and impartial outcome" of the investigation. This
is followed solely by comments of the Organization concerning the investigative
hearing record itself. This leads to a "request" that the disciplinary action
be rescinded. When the Division Superintendent stated that the request is
"declined in its entirety", the only reasonable conclusion to be drawn is that the
Carrier's representative was not in accord with the interpretation of the hearing
set forth by the Organization. The issue was properly joined, and the Organization
was not handicapped in progressing its claim further. The Board finds that the
Division Superintendent's answer, in this context, did not violate the requirement
of Rule 34(a).
The Organization argues that a fair and impartial hearing was denied to the
Claimant because the Carrier failed to call as witnesses the crew of the switch
engine involved in the accident. No such claim was raised during the course of the
hearing, which would have been the proper time to raise it. Aside from this, the
Board finds that it was a reasonable judgment call by the Carrier not to seek out
this testimony. There is no doubt as to what occurred after the Claimant's
vehicle entered the track. The question at issue was whether or not the Claimant
acted improperly in entering the tracks at that point in the first place.
As to the merits of the dispute, the record is clear that the Claimant
knowingly entered the track at a point where a red-flagged gate gave sufficient
warning of danger. To drive around the gate, as the Claimant did, was to risk
deliberately the type of incident which in fact occurred. The essence of the
matter is that the Claimant knowingly acted in disregard of an obvious warning
of danger in the operation of his vehicle. The penalty assessed was a moderate
one. The Board finds no basis on which to set aside the Carrier's judgment in
these circumstances.
Form 1 Award No. 8672
Page 4 Docket No. 8499
2-BNI-CM-'81 _
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
Byte-_ _ _ _
R~idmarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 18th day of March,
1981.