Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9026
SECOND DIVISION Docket No. 9151
2-D&TS L-CM-' 82
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute:
( and Canada
(
( Detroit and Toledo Shore Line Railroad Company
Dispute: Claim of Employes:
That the Detroit and Toledo Shore Line Railroad Company violated the
controlling Agreement when it unjustly assessed Carmen James Bellville
and Cary Adams five (5) days actual suspensions on April
3,
1980, as
a result of investigation held March 20, 1980, at Toledo, Ohio.
2. That the Detroit and Toledo Shore Line Railroad Company-be ordered to
compensate Carmen James Bellville and Gary Adams for all time lost as
a result of the unjust five
(5)
days actual suspensions from work,
make them whole for all seniority and vacation rights and all other
benefits afforded to them under the controlling Agreement, and
immediately remove unjust discipline from their service records.
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 Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimants, Messrs. J. Bellville, Inspector Write-up, and G. Adams, Carman
were employed by the Detroit and Toledo Shore Line Railroad Company when the
incident in question occurred. On March
5,
1980 they received notice to appear
at formal investigation on March 13, 1980 with respect tothe following charge
by Carrier:
"...
that during your tour of duty at the new car shop on
Saturday, February 23, 1980 you were negligent in the
repairs made to the coupler on the B end of tank car MCPX
23034.
As a result, the coupler pulled out of the B end
of car MCPX
23034
while being handled by a yard crew on
#+7
track with eight other cars at approximately 5:00 a.m.
Sunday, March
2,
1980, causing seven cars to run free, with
the south two cars, DTS
2361
and DTS 2412, derailing into
the turntable pit, resulting in excessive damage to the
turntable."
Form 1
Page
2
Award No. 9026
Docket No.
9151
2-D&TSI-CM-'82
A third carman, Mr. N. Poole, also party to the original Carrier charge,
was subsequently acquitted of all involvement in the incident in question.
After request for hearing postponement by Organization on March 9, 1980 hearing
was held on March
20, 1980.
As a result of the hearing, Messrs. Bellville and
Adams were notified on April
3,
1980 that each had been found guilty as charged
and were being assessed a five
(5)
day suspension. After all appeals through
appropriate steps had been made by Organization on property this case is now
before the Second Division of the National Railroad Adjustment Board.
Tine Board, in the instant case, fails to appreciate fully Organization's
distinction concerning whether car No. MCPX
23034
was "temporarily repaired"
or "temporarily put back together" by Claimants on February
23,
1980 in view
of Carrier charge that Claimants
"...
were negligent in the repairs made to
the coupler...". The critical issue, in the mind of the Board, which must go
beyond semantic distinctions is whether this car was in safe operating condition
after February
23, 1980
for yard movement and if not who was to blame. Hearing
evidence indicates that the probable cause of the March 2,
1980
accident was
that the cross key retainer lock had not been properly installed when the car
coupler had been re-assembled on February
23, 1980.
Claimant Adams allegedly
reinstalled the retainer when re-assembly took place and Claimant Bellville
as Write-up Man had primary responsibility for car inspection after this
procedure was completed. At no time did Claimant Bellville state after
February
23, 1980
to superiors nor to anyone else, according to investigation
transcript, that car No. MCPX
23034 was
unsafe for yard movement.
The role of the Board in its appellate function in this and other discipline
cases is not to substitute its judgment for that of Carrier, but to determine
if Carrier has met the test of substantial evidence. The Board's determination
in the present case is that Carrier has done so and the Board will not disturb
Carrier's position on this matter.
A
W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
eemarie Brasch Administrative Assistant
ma
Dated at Chicago, Illinois, this 14th day of April, 1982.
NATIONAL RAIIROAD ADtTUSTMENT BOARD
By Order o£ Second Division