Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
88
SECOND DIVISION Docket No.
8787
2-BN-FO-'81
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute:
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. Under the current Controlling Agreement, Mr. Dennis Daniel, Hostler
Helper, Havre, Montana, was unjustly dealt with when an entry of censure
was placed on his personal file effective May 24,
1979.
2. That, accordingly, the Burlington Northern, Inc. be ordered to remove
the entry of censure from ??r. Daniel's personal file.
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,
193+.
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 assigned as a hostler helper at Carrier's Diesel Shop,
Havre, Montana. On
may 3, 1979
at approximately
9:30
A.M. he was working with
a hostler in moving Amtrak Unit
21+3
eastward on No.
7
track prior to bringing
the unit into Havre Diesel Shop. The back-up movement was made with the hostler
at the controls. The record shows that approximately thirty feet from the Diesel
Shop door, claimant gave the hostler a slow sigma. and got off the unit. Seeing
that the unit was not slowing down, the claimant then gave a "wash-out" or stop
signal, but the movement was not stopped before Unit
243
crashed through the
overhead door to Stall No.
7
on the west end of the Diesel Shop.
As result of the accident, the claimant and the hostler were cited for
investigation "for the purpose of ascertaining the facts and determining your
responsibility in connection with damage to seven
(7)
stall door west end of
Diesel Shop seven
(7)
track about
9:30
A.M.,
may 3, 1979
at the Havre Diesel Shop,
Havre, Montana". Following the investigation, an entry of censure was placed on
claimant's personal record. The claim seeks the removal of the entry of censure.
The Organization contends that the investigation was improper because the
same officer cited the claimant, conducted the investigation, and assessed the
discipline. Such procedure has been upheld by so many awards of the Board as to
not require citation. Further, it is well settled that if objections to the
Form 1 Award No. 8840
Page 2 Docket No. 8787
2-BN-FO-'81
charge or the manner in -which the investigation is conducted are to be raised,
such objections must be raised prior to or during the course of the investigation;
otherwise they are
deemed waived
. The contentions of the Organization in this
respect are rejected.
It is also well settled that in discipline cases the burden of proving the
charge by substantial evidence is upon the Carrier. This aspect of the case gives
us concern. The hostler was in charge of the movement of the unit. He testified
in the investigation that claimant gave him a proper slow signal and a proper stop
signal, but he was not certain as to the distance at which the stop signal was
given. In the investigation the General Foreman testified in answers to questions
by the conducting officer:
"Q. Mr. Zachau, in Mr. Daniel's statement he said that the alertor
was missing from Amtrak 243 and no doubt the reason that the
automatic brake was not functioning. Do you have any knowledge
or reason for the alertor missing from Amtrak 243?
A. Yes. We are out of alertors and the alertor was removed to
use in another locomotive that was due to run out on one of
the Amtrak trains.
Q. In other words, you required the elertor to be put on another
locomotive for use?
A. That is right.
Q. Mr. Zachau, is it normal procedure for a mechanic at the Havre
Diesel Shop to remove an alertor and leave a locomotive in the
condition where it is not operable, does this happen?
A. Well, I imagine an electrician removed the alertor and it
would just be his job to remove the alertor.
Q. He probably didn't tell anyone?
A. No, I'm sure that could have happened.
Q. It was, in other words, a sort of a trap for a hostler to
walk into?
A. Yes, it .could be."
The record shows that later in the day, after the accident, tests were made
with the same unit, under about the same conditions and the unit was able to stop
short of striking the door. In the investigation some contention was made about
the track being in a different condition when the accident occurred than it was
at the time the tests were made.
Form 1 Award No.
88+0
Page
3
Docket No. 8787
2-BN-FO-181
Based upon our study of the investigation, particularly the testimony of
the hostler as to the signals given by the claimant, we would have to speculate
that the stop signal was not timely given to support discipline against the
claimant. We cannot support discipline based on speculation or conjecture.
While it is unfortunate that the accident occurred as it did, at the same time
we find that the Carrier did not present the substantial evidence required to
support discipline against the claimant.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
---
~ __
r
By
Z-2
!?~-·
s rie Brasch - Administrative Assistant
Dated Chicago, Illinois, this 9th day of December, 1981.