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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 93$0
SECOND DIVISION Docket No. 9337
2-L&N-CM-'83
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
( Louisville and Nashville Railroad Company
Dispute: Claim of Employes:
I. (a) That Carman R. Bryant, Jr., was improperly given a thirty (30)
day actual suspension from service of Carrier from December 18,
1979,
through January
17,
1980, inclusive in violation of Rule
34 of the Current Agreement by way of letter dated December 12,
1979, and
(b) Accordingly, the Louisville and Nashville Railroad Company should,
be ordered to compensate Carman Bryant for all time lost as a
result of said improper suspension, or one hundred and seventy
six (176)
hours at the straight time rate of pay, plus all
overtime lost.
(c) Carrier should also be instructed to clear Cayman Bryant's
personal file of all implications and allegations as charged.
2. (a) That the Carrier is improperly giving actual days suspension as
discipline which is not in line with the provisions of Rule 34
Discipline, of the Current Agreement.
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, M. R. Bryant, Jr., who was employed as a carman working for the
Carrier, received two separate notices on November
5,
1979 to attend investigations.
The first notice dealt with his alleged unsafe operation of Carrier vehicle
#T-3+93 on October 30, 1979 in violation of the Louisville and Nashville
Instructions for Operation and Maintenance of L and N Vehicles. Claimant was
accused of allegedly backing this truck into the privately owned car of another
carman, which car sustained approximately $100.00 in damages. Hearing on this
Form 1 Award
NO.
9380
Page 2 Docket No.
9337
2-L&N-cm-'
83
issue, originally scheduled for November
14, 1979
was subsequently held on
November
19, I979.(*)
The second notice dealt with the charge of alleged
insubordination by Claimant on November
3, 1979.
On that date Claimant was
purportedly instructed by Assistant Departmental Foreman, R. D. Bean to came
to the rip track at
7:00
A.M. and he neglected to do so. Hearing on this issue,
originally scheduled for November 15,
1979
was subsequently held on November
19, 1979
also. (**) As a result of these two hearings Claimant was assessed
thirty
(30)
days actual suspension from service.
In the instant case the Board is presented with a number of issues. The
first and second deal with the Organization's claim that the hearing was not
conducted in a fair and impartial manner and that the Carrier was in violation of
Rule
34
of the controlling Agreement when it assessed Claimant an actual
suspension of thirty
(30)
days. The third issue deals with whether sufficient
substantial evidence was present to warrant a finding of guilt on both charges
levied against the Claimant.
This Board finds no grounds on which to determine that the hearing was
unfair. That part of Rule
34
of the controlling Agreement in dispute is the
following: "No employee shall be disciplined without a fair hearing by designated
officers of the Carrier". It is the claim. of the Organization that this Rule,
as written, does not permit Carrier to assess actual suspension days as a sanction
against Carrier employes. This Board here underlines that it finds that part of
Rule
34
which is in dispute to be no more than the result of general language
negotiated by the parties to the Agreement. By definition, general language,
which is common in union contracts in all industrues in the U.S., gives itself
to variable interpretations: if the parties wish to specify further their set
of understandings on discipline, or on anything else, they may always do so in
succeeding rounds of collective bargaining negotiations. With all due respect
to the prior Award
1195 (I9?+7)
which did not take a position on the meaning
of the general language quoted above of Rule
34,
this Board now rules that
until and unless the Organizat:b n negotiates a specific meaning to this part of
the Rule that there is no contractual burden on the Carrier to do other than to
use common sense and fair management practices in issuing sanctions when it
determines that an employe is guilty as charged.
The application of the sanction of thirty
(30)
actual suspension days under
Rule
34,
however, hinges on the presumption of Claimant's guilt on all counts
with which this Board has some problems after a close analysis of the transcript
of the hearings which took place on November
19, 1979.
With respect to Claimant's
alleged violation of the Instructions for Operation and Maintenance of L and N
Vehicles the Board notes witness testimony of the mechanical defects of the
Carrier submission mistakenly states that the hearing was held at
g:oo
A.r1.
on November
14, 1979,
instead of at
9:00
A.M. on November
19, 1979
(P·$)·
(**) Carrier submission mistakenly states that the hearing was held at
9'00
A.M.
on November 15,
1979
instead of at 11:x+5 A.M. on November
19, 1979
(P· 10).
Form I
Page
3
Award No. 93$0
Docket No. 9337
2-L&N-CM-'83
vehicle in question and the Board has great difficulty.applying the principle of
adequate substantial evidence in order to arrive at a verdict of guilt. Railroad
employes must exercise habits of safety, but Carriers are also under the weight:
of responsibility of providing mechanically safe equipment and it is far from
clear to the Board that the Carrier fulfilled this obligation in the instant case.
In short, substantial evidence is not present in sufficient degree to permit the
Board to sustain Carrier on this charge. On the other hand, the record of the
transcript relating to the charge of insubordination indicates that Claimant was
aware of the order given by Mr. R. D. Bean, the Assistant Department Foreman,
who was his supervisor at the time. It may well be, in the mind of the Board,
that Claimant did not disobey this order out of ill-will but rather because of
certain assumptions he held about the relationship between this order and a
possible ride home which he could have received with Mr. Bean; nevertheless, it:
was Claimant's obligation to establish the relationship between his assumptions
and the facts which he could have done by reporting to the car shop office prior
to going home. But he failed to do this. The Board must sustain the Carrier cm
this charge.
Given the Board's determination on these issues, therefore, it directs that
the thirty (30) day actual suspension be reduced to a fifteen (15) day actual
suspension and that Claimant be made whole, at straight time rate of pay, for one
half of the compensation he lost while out of service.
A W A R D
Claim sustained to the extent indicated in the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
l
BY
semarie Brasch - Administrative Assistant
Datedfat Chicago, Illinois, this 2nd day of February, 1983.