Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10044
SECOND DIVISION Docket No. 10314
2-BRCofC-CM-'84
The Second Division consisted of the regular members and in
addition Referee Jonathan Klein when award was rendered.
( Brotherhood Railway Carmen of the United States and Canada
Parties to Dispute:
( Belt Railway Company of Chicago
Dispute: Claim of Employes:
1. That, as a result of an investigation held on December 11, 1981,
postponed and continued on January 29, 1982, Carmen T. O'Dbwd, G.
Wakefield, E. Watson, J. Drish and J. Christensen were each assessed
a fifteen (15) day actual suspension from service. Suspensions were
effective February 6, 1982 through February 20, 1982 inclusive. Said
suspensions of the above-named Carmen are arbitrary, capricious,
unjust, unreasonable and in violation of Rule 20 of the current working
Agreement.
2. That The Belt Railway Company of Chicago be ordered to remove the
discipline from each Carmen's personal record and compensate them for
all wage losses, plus interest at the current rate, sustained account.
of the fifteen (15) day suspension.-
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 jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On November 19, 1981, the Claimants, T. O'Dowd, G. Wakefield, E. Watson,
J. Drish and J. Christensen had all worked their regular assignments of coupling,
air testing and inspecting a Conrail train with 113 cars. The train departed
the Clearing East Yard on November 20, 1981. On December 7, 1981, Carrier's
assistant superintendent was informed that the train of 113 cars had arrived at
Conrail's Elkhart, Indiana yard with two (2) cars in the consist in violation
of federal regulations, to wit: the 35th car from the head end (U.T.L.X. 7512_1)
was a placarded tank car loaded with acid, and the 36th car (W.S.O.R. 5681) was
a shiftable load of steel pipe casings. As a result of a formal investigation
and hearing, Claimants were each assessed on February 6, 1982 a fifteen (15)
day actual suspension from service.
Form 1
Page 2
Award No. 10044
Docket No. 10314
2-BRCofC-CM-'84
The Organization asserts that the condition charged (placing a shiftable
load of steel casings next to a placarded tank car of acid) was not proved by
Carrier, claiming there was no evidence that the tank car was placarded. The
Carrier contends that not only did it meet its burden of proof, but that the
claims are barred, and must be dismissed as untimely.
This Board is most reluctant to prevent consideration of the merits of a
claim on the basis of a procedural technicality. In the instant case, the
Carrier would submit that Claimants" appeal was initially filed in violation of
Article V of the controlling agreement which provides in part:
"(a) A11 claims or grievances must be presented in
writing by or on behalf of the employee involved, to
the officer of the Carrier authorized to receive same,
within 60 days from the date of the occurrence on
which the claim or grievance is based."
The letter dated February 19, 1982 of the local chairman initiating the
appeal is stamped received by Carrier on May 28, 1982. This Board need not
address the sufficiency of the presentation of these claims, as a careful review
of the record indicates that the chief operating officer designated to handle
such disputes addressed the merits of the claims without mention of the timeliness
issue. while two previous responses by Carrier's representatives in the handling
of the claim raised the issue of timeliness, the response by Carriers last
officer in the appeal process waived this issue.
Proceeding to the merits of the claims, the Board is of the considered
opinion that organization's vigorous assertion that Carrier failed to meet its
burden of proof must fail. The question which must be decided is the propriety
of the conclusion reached after the formal hearing as to whether the circumstantial
evidence is sufficient to establish the charger i.e., that the fact that Claimants
failed to comply with the rules is more probable than any other allegation of
fact. The issue of whether the two cars in question were improperly assembled
and inspected by Claimants as charged, must be the most natural inference from
the established facts. Carrier°s Rule 113 provides that:
"Employees whose duties or employment are affected
by Federal, State or Municipal laws, or the
regulations of the Bureau of Explosives must
familiarize themselves generally with all requirements thereof and conform to them."
Bureau of Explosives Pamphlet No. 20 titled "Hazardous Material Regulations
Excerpted for Railroad Employees," Rule 174.92 states:
Form 1 Award No. 10044
Page 3 Locket No. 10314
2-BRCofC-CM-'84
"Separating loaded, placarded tank cars other than
cars placarded combustible from other cars in trains.
(a.) In moving or standing train a loaded placarded
tank car, other than one placarded 'combustible,' may
not be placed next to:
Item 6 thereof reads:
(6.) An open-top car when any of the ladings protrudes
beyond the car ends or when any of the lading extending
above the car ends is liable to shift so as to protrude
beyond the car ends.°
The facts established at the investigation consisted of the following:
1. That Claimants knew, or should have known of Rule 174.97.
2. That Claimants' responsibilities included insuring that
no open shiftable loads were placed next to a hazardous,
placarded tank car.
3. That Carrier's outbound train list placed a gondola car,
W. S. O. R. 5681,
containing a
load of steel casings next to
car U. T. L. X. 75121, a tank car load of corrosive acid.
4. That the waybill for tank car, U.T.L.X. 75121, indicated
said car contained methacrylic acid and was placarded
corrosive.
5. That on the same date that the Conrail train was assembled
and inspected by Claimants, the gondola car W. S.O.R. 5681
was repaired due to "Pipe Shifted."
6. That if the tank car was not placarded, the Claimants
would not have known that it contained hazardous material.
7. That when the train at issue arrived in Elkhart, Indiana,
the tank car, U. T. L. X. 75121 was placarded and positioned
directly next to car W.S.O.R. 5681, containing a load of
shiftable pipe, i.e., pipe which extended over the top of
the gondola car.
8. That none of the Claimants observed the tank car and gondola
car next to one another.
Form 1 Award No. 10044
Page 4 Locket No. 10314
2-BRCofC-CM-' 84
While it is the Board's opinion that direct evidence is preferable to
circumstantial evidence, in this particular case, the circumstantial evidence
has been sufficiently established, and the reasonable inferences which follow
lead to the probable
conclusion
that Claimants failed to perform their duties
as charged. The Board further finds that the discipline assessed was neither
arbitrary, unreasonable, nor capricious.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: , o
e~e~
Nancy J."
DIVer
- Executive Secretary
Dated at Chicago, Illinois, this 22nd day of August 19840