C:\AWARDS\OUT\2-08928.htm

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8928
SECOND DIVISION Docket No. 8793
2-BN-MA-182
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
( International Association of Machinists and
Parties t o Dispute: ( Aerospace Workers

( Burlington Northern Railroad Company

Dispute: Claim of Employes

1. That under the current agreement and the Burlington Northern schedule of

rules, the Carrier unjustly suspended Machinist G. P. Lippert from

service for a period of ten (10,1 working days, from February 27, 1979

through Monday, March 12, 1979 inclusive.

2. That accordingly, the Carrier compensate Machinist Lippert for all

wages lost as a result of said suspension.

Findings:

The Second Division of the Adjustment Board, upon the whole recur d 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.

Claimant was employed by the Carrier as a machinist at the Carrier's shop at Havelock, Nebraska, working the 3:00 P.M. to 11:00 P.M. shift.

On January 17, 1979, claimant was one of several employes leaving work by way of the staircase at the wheel plant. There was some partially melted snow, or slush as described by the claimant, covering a portion of the steps. In descending the steps claimant allegedly slipped as a result of which he reported an injury to his back.

On January 22,

1979,

claimant was notified:

"Attend investigation in the Main Office Meeting Room at Havelock Shop at 1:30 PM, Monday, January 29, 1979, for the purpose of ascertaining the facts and determining your responsibility in connection with your alleged injury of January 17, 1979 at 11:04 PM.

Arrange for representative and/or witnesses, if desired, in accordance with ,governing provisions of prevailing schedule rules.

.. :-, m 1 Award No. 8928
age 2 Docket No. 8793
2-BN-MA-' 82
Please acknowledge receipt by affixing your signature in the space provided on copy of this letter. E. J. Spomer
Shop Superintendent cc: T. E. Silva" The investigation was conducted as scheduled. On February 27, 1979, claimant was notified that he was suspended from service for ten working days, commencing; ,it 3:00 P.M., Tuesday, February 27, 1979.

In its submission to this Board, the Organization alleges that Carrier (a) denied claimant a fair and impartial hearing; (b) suspended claimant from service when in fact the charges levied against him were not supported by substantial evidence in the record; and (c) denied claimant an objective review of the case on appeal to higher carrier officers. From our review of the record, we do not ttnd where (a) and (c) were raised in the handling of the dispute on the property. .L is well settled that exceptions to a charge or the manner in which an investigation is conducted must be raised during the course of the investigation; otherwise, they are deemed waived. However, the charge against the claimant was sufficiently precise to enable the claimant and his representative to prepare a defense. Furthermore, the Board has ruled that it is not necessary to cite specific rules in a letter of charge. See Awards 7936, 8495 8+92 and 819+.

We have reviewed the transcript of the investigation and find that substantial evidence was adduced to support the conclusion that claimant was fully aware of she conditions of the steps and failed to take the necessary precaution to avoid slipping. The record shows that some twenty-six or twenty-eight other men used the same steps on the same night without mishap. In the investigation claimant stated that he understood the Safety Rules of the Carrier. Safety Rule H provides:

"H. Employees must:

Not incur risk which can be avoided by exercise of care and judgment.

Take time to work safely.

ExWcise care to prevent injury to themselves and others."

In the handling on the property the Carrier pointed out that claimant had sustained seven previous injuries of a minor nature from September 27, 1977, vAtil the incident here involved. On the entire record, there is no proper basis for the Board to interfere with the discipline imposed.

A W A R D

Claim denied. Form 1 Award No. 8928 Page 3 Docket No. 8793 2-BN-MA-182 NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Second Division Attest: Executive S<tcretary National Railroad Adjustment Board B]yy 4s;e~m;a~rieBr`asch - Administrative Assistant Dated at Chicago, Illinois, this 24th day of February, 1982.