Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9840 '
SECOND DIVISION Docket No. 9905
The Second Division consisted of the regular members and in
' addition Referee
Eckehard Muessig when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute: ( System Council No. 7
( Boston and Maine Corporation
Dispute: Claim of Employes:
1. That under the current Agreement, the Boston and Maine Corporation has
unjustly suspended Lineman James F. Maloney fifteen (IS) working days without
pay and entered thirty-six (36) demerits in his service record; made effective
by notice of discipline dated November 18, 1981.
2. That accordingly, the Boston and Maine Corporation be ordered to restore
Lineman James F. Maloney to service with seniority rights unimpaired and with
all pay due him from the first day he was held out of service until the day he
is returned to service, at the applicable Lineman's rate of pay for each day he
has been improperly held frcm service; and with all benefits due him under the
group hospital and life insurance policies for the aforementioned period; and
all railroad retirement benefits due him, including unemploWent and sickness
benefits for the aforementioned period; and all vacation and holiday benefits
due him under the current vacation and holiday agreements for the aforementioned
period; and all other benefits that would normally have accrued to him had he
been working in the aforementioned period in order to make him whole; and to
expunge 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 employes within the meaning of the Railway Labor
Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisidiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The events that led to this dispute occurred on October 12, 1981, when the
Claimant, a Lineman who was a member of a crew of three driving to their work
site in a Company vehicle picked up a passenger who was not employed by the
Carrier. It followed that an accident involving only the Company vehicle
occurred. There were no citations issued by police authorities to the driver
of the vehicle who, at the time of the accident, was not the Claimant. Following
the accident, the Claimant completed a personal accident report at the request:
of the Carrier. The Carrier charged that the Claimant violated two of its
Rules. The first was related to the presence of an unauthorized passenger in
Form 1 Award
No. 9840
Page 2 Docket
No. 9905
2-B&M-EW-'84
the vehicle at the time of the accident, and the second was related to his
failure to report the presence of the passenger in his accident report. Following
an investigative hearing, the Claimant was found guilty of the charges and was
suspended fifteen
(15)
working days without pay and assessed twenty-four (24)
demerits to be entered on his service record.
The Organization, on the property, raised the contention that the Claimant
was denied a fair and impartial trial, essentially on the basis of the Hearing
Officer's role and the failure of the Carrier to conduct a separate trial concerning
the Claimant only. The Organization also holds that the Claimant was not aware
of the Rule which required him to report violation of Carrier's Rules (i.e.,
the presence of the passenger) and further, it contends that there was no evidence
to show that the Claimant stated anything which was untrue on the face of the
personal injury report completed by him.
In its submission to the Board, the Organization raised certain new procedural
contentions, particularly with respect to the demerit system, which we did not
consider because they were not raised on the property. Furthermore, we find no
showing that the investigative process prejudiced the Claimant's interests.
With respect to the Claimant's knowledge of the Rules, in July 1978 he
attended classes on the Rules of the Operating/Engineering Department for promotion
to Signalman. The Rules pertaining to the specific issues herein were a part:
of those classes. Although, as an employee of the Electrical Department, to
which he was assigned at the time o f the incident, he had not received recent:
Rule instruction, nevertheless, the record shows that this Claimant had been
instructed in the pertinent rules earlier. His testimony also provides
sufficient evidence that he was aware that the presence of the non-employee
passenger was contrary to the Carrier's Rule. Moreover, the Carrier's conclusion
that the Claimant should have known it was unacceptable to allow a non-employee
to be a passenger, irrespective of Rule knowledge, as stated in our Award 9838,
is not an unreasonable one.
With respect to the Claimant's role and responsibility relative to the
incident, the Board notes that he called the non-employee and arranged for the
pick-up. He was also the driver to the pick-up site. Therefore, he shares a
significant degree of responsibility for the presence of the non-employee
passenger in the Carrier's vehicle. Consequently, although the Board does not
have in the record before it the personal injury report completed by the
Claimant, his testimony indicates that he did not factually complete the
report. Given the significant role he played and his knowledge, as evidenced
by the record, that his actions rare violative of the Carrier's Rules, the
discipline imposed will not be disturbed.
Form 1
Page 3
Claim denied.
Nancy
Award No. 9840
Docket No. 9905
2-B&M-EW-'84
A W A R D
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Di vi s6nn
- Executive Secretary
Dated at Chicago, Illinois this 4th day of April, 1984