Form 1 NATIO14AL RAILROAD ADJUSTMENT BOARD Award No. 9123
SECOND DIVISION Docket No.
8691
2-BN-FO-182
The Second Division cm sisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
I. Under the current controlling Agreement, Mr. Don Heckel, hostler
helper, Havre, Montana, was unjustly dealt with when suspended for a
period of ten days of service from the
Burlington Northern,
Inc., on
April
16, 1979
through April 25,
1879.
2. That, accordingly, the Burlington Northern Inc. be ordered to compensate
Mr. Don Heckel for all time lost at the pro rata rate and any reference
to this incident stricken from his 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 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.
Claimant is a Hostler Helper employed by Carrier at Harve, Montana. He
was suspended for ten days when a two-unit consist operated by his Hostler
rammed the doors of the Search Building at the Harve Facilities. Both the
Hostler and Claimant were charged with failure to comply with the following notice:
"MECHANICAL NOTICE: 2-79
HOSTLERS AND HOSTLER HELPERS:
When handling locomotives at the Harve Diesel Shop, movement
of locomotives must come to a complete stop ten (10) feet in
advance of the Diesel Shop or Search building doors.
It Will be determined by the hostler and hostler helper that
the way is clear for a safe movement into or out of the
buildings before proceeding.
H. J. Bell
Asst. Supt. Mechanical"
Form 1
Page 2
Award No. 9123
Docket No. 8691
2-BN-FO-'82
A hearing was held in the matter. Both the Hostler and Claimant were found
guilty as charged and assessed a ten-day suspension.
The Organization has progressed the instant claim alleging that Claimant
has been arbitrarily and capriciously penalized for an action that he did not
commit or contribute to and over which he had no control.
Carrier argues that Claimant was responsible for making sure that the
consist was moving at a controllable speed and to give signals to the Hostler
in sufficient time to allow him to stop ten feet short of the doors. The engine
did not stop; it hit the doors. Therefore, Claimant is guilty of not giving the
proper signals to stop the train on time.
A careful review of the record of this case reveals that its pertinent
facts are almost identical to those present in Award No.
88+0.
That decision, in
which we sustained the claim, involved the same parties and similar incident at
the Harve Shops. In that case we wrote:
"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 speculatirn 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."
In the instant case, the record clearly establishes that Claimant gave the
proper signals in a timely manner to the Hostler. We find no probative evidence:
in the record on which to support his discipline. Our uneasiness over speculating
about the actions of the Claimant in Award No.
880
is present in this case as
well. This Board is fully aware of its obligation in reviewing discipline
imposed by Carrier. We are not anxious to substitute our judgment for that of
Carrier officials. We do not, however, support Carrier's action in this instance
and we are compelled, given the facts of this record, to sustain the claim.
A W A R D
Claim sustained.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
B'
,_-~emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 16th day of June, 1982.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division