Form 1 NATIONAL RAILROAD
ADJUSTMENT BOARD Award
No. 10260
SECOND DIVISION Docket No.
10266
2-BN-EW-185
The Second Division
consisted of the regular members and in
addition Referee Hyman
Cohen when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Burlington Northern Railroad
Dispute: Claim
of Employes:
1. That in violation of the current Agreement, Communication District Lineman
N. Bentele was unjustly suspended from service of the Burlington Northern
Railroad for a
period of
five (5) days as the result of an investigation
held on
January 27, 1982.
2. That the Burlington Northern failed to
provide a
complete and accurate
hearing transcript and the investigation held on January 27, 1982 was not
a fair and impartial investigation.
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.
The Claimant was employed as a Communications District Lineman at the Carrier's
facility
located at
Quincy, Missouri. As
a
result of an investigation that was
held on January 27, 1982, the Claimant was
suspended from
service for five (5) days
for "failure to operate track car
prepared to
stop", and striking a fellow employee
on
November 24,
1981.
After carefully examining the record,
the Board concludes that
the Carrier
failed to
meet its burden of proving any rule violations by the Claimant which
would warrant discipline. The record
discloses that
the employee who was struck
did
not notice or hear the motor car
operated by
the Claimant on November 24, 1981
because of a noisy compressor motor.
He stepped into
the path of the motor car
leaving the Claimant no time to stop or avoid the accident.
The
Claimant cannot
be
said to be negligent or responsible for the
accident. Had lookouts
been posted by
his
Supervisor or
had his
Supervisor
stopped the
Claimant and warned the employees
that the Claimant would be operating the motor car across the bridge, the
accident
in
question would
not have occurred.
Form 1 Award No. 10260
Page 2 Docket No. 10266
2-BN-EW-185
Accordingly, the Carrier failed to carry its burden of proving that the Claimant
violated Rule 62 of the Rules of the Maintenance of Way
Department of
the Operating
Department which
provides in relevant part that "Track cars *** must approach persons
*** where the view is obscured" and be "prepared to stop".
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 13th day of February 1985.