Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11608
t SECOND DIVISION Docket No. 11516
88-2-87-2-158
The Second Division consisted of the regular members and in
addition Referee Raymond E. McAlpin when award was rendered.
(Brotherhood Railway Carmen of the United States and Canada
PARTIES TO DISPUTE:
(CSX Transportation, Inc.
STATEMENT OF CLAIM:
1. That the former Louisville and Nashville Railroad Company, now
a part of the CSX Transportation, Inc. and hereinafter referred to as the
Carrier, acted arbitrarily and capriciously in violation of the controlling
agreement and in particular, Rules 29 and 18, when they unilaterally disqualified Cayman R. H. Mooneyham, Jr., hereinafter referred to as the Claimant,
from operating the wrecker on February 6, 1986.
2. And, that the Carrier should be ordered to restore Claimant to
the position of wrecker operator and make him whole for any and all time,
including overtime and benefits, that he lost as a result of their action.
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 Organization argued the Carrier removed the Claimant from operating the wrecker in violations of Rules 18, 29 and 34, which are reproduced
below:
"RULE 18
BULLETINING VACANCIES
18(a) When new jobs are created or permanent
vacancies occur in the respective crafts the
senior employees in point of service shall, if
sufficient ability is shown by trial, be given
preference in filling such jobs. All new jobs
Form 1
Page 2
Award No. 11608
Docket No. 11516
88-2-87-2-158
or vacancies will be bulletined. Copy of bulletin to be given the local chairman. Bulletin
must be posted 5 days before new jobs or vacancies are filled. Bulletins will be posted immediately when it is known a position is to be
vacant or new job is to be created.
18(b) Employees desiring to avail themselves of
this rule will make application to the officer
in charge, and will furnish a copy of the application to the local chairman."
"RULE 29
SENIORITY
29(a) Seniority of each employee covered by
this agreement will begin from the date and time
the employee starts to work."
"RULE 34
DISCIPLINE
No employee shall be disciplined without a fair
hearing by designated officers of the carrier.
Suspension in proper cases pending a hearing,
which will be prompt, shall not be deemed a
violation of this rule. At a reasonable time
prior to the hearing, such employee and his
local chairman will be apprised to the precise
charge and given reasonable opportunity to
secure the presence of necessary witnesses. If
it is found that an employee has been unjustly
suspended or dismissed from the service, such
employee shall be reinstated with his seniority
rights unimpaired, and compensated for the wage
loss, if any, resulting from said suspension or
dismissal."
The Claimant had been operating the wrecker for approximately 5
years. This shows that he was qualified. The incident which the Carrier
relied upon to disqualify the Claimant from wrecker operation was in fact the
supervisor's fault. When the car was attempted to be lifted without the use
of outriggers, the Claimant did respond to verbal instructions and thereby
complied with the Carrier's own rules. The Organization stated the Carrier
showed no proof as required in Rule 34 for discipline cases, and this was not
a medical disqualification as no medical exam was performed.
The Carrier argued the Claimant has a severe, permanent and noncorrectable hearing impairment. The Claimant filed an FELA suit and, prior
the disposition of that suit, the Carrier and the Claimant reached a settlement which compensated him for past and future wage losses. The Claimant
to
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voluntarily agreed to the settlement, and the Claimant agreed never to attempt
to return to work in any capacity. Therefore, the Claimant is estopped from
claiming reinstatement rights to his former position. Since he was compensated as a result of the legal proceeding, any payment under. this case would
amount to a double recovery. The Carrier contended the Claimant was properly
disqualified and for good and sufficient reason. The Carrier did not act in
an arbitrary, capricious or unreasonable manner in violation of any of the
rules of the controlling Agreement, and the Carrier stated the claim should be
dismissed or denied in full.
The Board is faced with the determination of whether or not the
Carrier acted properly and under the rules in disqualifying the Claimant from
his position as a wrecking derrick operator. Subsequent settlements as a
result of an FELA case or any other litigation are really not appropriate to
determine the central issue of the case because they occurred subsequent to
the Carrier's decision. It is not unusual, for example, in discharge and
discipline cases for the Employer to discover additional information proving
the guilt of an employee or find that the employee has violated other rules of
the Employer. This information is generally not taken into account by referees or arbitrators because the
information was obtained after the decision was
made. In this case the information contained in the record regarding the
settlement of the FELA case cannot assist the Board in rendering its decision
with respect to the initial disqualification of the Claimant, which is the
claim before us. If it has any value at all, it can only be to the extent
that the continuation of the disqualification was appropriate after further
evidence was received during the litigation.
With respect to the initial determination of disqualification, the
Board finds there is enough evidence in the record wherein the Carrier would
have reasonable cause to be concerned for the safety of both the Claimant and
others who were working with him. The Board notes that the Claimant had been
removed previously from operating the wrecker under similar circumstances.
There is no convincing evidence that the Carrier acted in an arbitrary and
capricious manner. Regarding the continuing disqualification of the Claimant,
it seems to the Board that both sides could have provided medical evidence in
support of their respective positions. Since they did not and since the
initial disqualification was found to be appropriate, the Board will deny the
claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
'Attest:
Nancy J ~er - Executive Secretary
Dated at Chicago, Illinois, this 30th day of November 1988.