Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No.
8912
SECOND DIVISION Docket No. 90+1
2-IHB-CM-'82
The Second Division consisted of the regular members and in
addition Referee Clarence H. derrington when award was rendered.'
Brotherhood Railway Carmen of the United States
Parties to Dispute: ~ and Canada
(
( Indiana Harbor Belt Railroad Company
Dispute: Claim of Employes:
1. That the Carrier violated the controlling agreement when they unjustly
dismissed Carman E. Sizemore from service following investigation held
on November
16, 1978.
2. That accordingly, the Carrier be ordered to reinstate the claimant to
service with all seniority rights, vacation rights, health and welfare
benefits and all other privileges that are conditions of employment
unimpaired as well as compensation for all lost wages plus
6%
per
annum due to the Carrier's action.
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, 1931+.
This Division of the
Adjustment Board
has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Claimant entered the service of the Carrier on September 23,
1972.
Claimant
had
6
personal injuries in an
18
month period, t.e., May,
1976
to November,
1978,
the last two oadurring on November 2,
1978.
The Claimant, in letter dated
November
8, 1978,
was notified of investigation to be held on November
16, 1978,
to answer the following charges:
"1.) 'Fleing away from your assigned work location at the time
your personal injury occurred at 8:30 PM, November 2,
1978.
2.) Having six
(6)
personal injuries since May
1976,
of
which three (3) has resulted in loss time injuries."
The investigation was held as scheduled. At the outset, the Organization
takes the position that the notice of investigation was not precise in accordance
with Agreement rules. The Organization further contends that charge No. 1 was
not proven and that charge No. 2 placed the Claimant: in double jeopardy inasmuch
as he had already been tried for the previous charges of personal injuries.
Form 1 Award No.
8912
Page 2 Docket No. 901
2-IHB-CM-182
The Board has carefully reviewed the charges as set out in Carrier's
notice of November
16, 1978,
and finds ample information contained therein to
fully meet the provisions of Rule 32. Considering the testimony and conduct of
the Claimant and his representative at the investigation, it is clear they were
prepared for the investigation were sufficiently notified of the Carrier's
charge. The Board hereby holds that the Claimant was clearly advised of the
precise charge and will, therefore, dismiss the procedural issue.
We have carefully reviewed the entire transcript of the investigation and
briefs furnished by both parties and find that the Claimant was given a fair
and impartial hearing and that none of the Claimant's procedural rights were
violated.
As to the Organization's contention that charge No. 1 was not proven
this Board, in reviewing the transcript of investigation:, has fully taken into
consideration all the ports so forcefully raised by the Organization in the
Claimant's behalf. In spite of the Organization's vigorous appeal, the Board
finds no support for the claim and no justification to substitute its judgement
for that of Carrier.
The facts developed in the investigation conducted on November
16, 1978,
confirmed that Claimant had
6
alleged injuries, covering a span of 18 months.
The record also shows that Claimant had previously been dismissed and
reinstated on a leniency basis for violation of Carrier's safety standards.
"Accident proneness" wale defined in First Division Award 20
x+38:
"The Division understands that an accident prone employe is one
who has demonstrated a propensity to get hurt in performing
service in his occupation under conditions where successive
injuries could have bees avoided if the employe had exercised
more care of foresight
or
had possessed better physical or
mental traits, such as faster reflexes and better neuromuscular coordination. Evidence suggesting accidentproneness would include a rate of accident frequency and/or
severity that is significantly higher for said employs than
the rates which in the light of past experience might reasonably
be expected of him.
XXXXX
Accident proneness usually involves a continued behavioral pattern
of susceptibility to getting hurt."
This principle has been upheld by numerous awards of this and odher
Boards.
The Board has objectively taken into consideration the Organization's letter to
this Board dated March 18,
1981,
making extensive arguments regarding Carrier's
including in its submission to this Board that Claimant had previously been
F orm 1
Page
3
Award No. 8912
Docket No. 9041
2-IHB=CM-'82
dismissed and reinstated on a leniency basis for violation of Carrier's safety
standards. The Organization contends that this argument and information was
not discussed by the parties during handling of this claim on the property.
The principle has been well established in prior decisions of this and
other Boards that in determining the degree of discipline, after a violation
has been established, a Carrier may take account of an employe's entire service
record. Not only is it proper to do so, but necessary on grounds of equity
and justice. The Board also notes that the complained of statement was included
in a point statement prepared and signed by loth parties dated April 19, 1979
and was included by the parties as exhibits to their respective submissions to
this Board. The Board, therefore, holds that none of the Claimant's procedural
rights were violated.
Based upon tle entire record in the case before us, as well as the Claimant's
past record, the board finds that the Carrier is not required to retain in its
service an employs who cannot, or does not, perform his work with safety to himself or to other employee. In spite of the Organization's vigorous appeal, the
Board can see no reason to substitute its judgement for that of Carrier.
Therefore, this claim must be denied.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
BY / ~ L~
,/' osemarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 10th day of February, 1982.