Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11765
SECOND DIVISION Docket No. 11585
89-2-88-2-100
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE:
(The Belt Railway Company of Chicago
STATEMENT OF CLAIM:
1. That as a result of an investigation held on June 2, 1987, Carmen
B. Clement, J. Feipel and J. Orta were each assessed a reprimand which was
placed on their personal file. Said discipline is arbitrary, capricious,
unfair, unjust, unreasonable, petty, frivolous, contemptible, and in violation
of Rule 20 of the current working Agreement.
2. That the Belt Railway Company of Chicago be ordered to remove the
reprimand from each Carmen's personal file. Also, that Carman Clement be
compensated for his loss of eight (8) hours' pay as a result of being ordered
to attend the investigation, and that Carmen Feipel and Orta be compensated
for a call, which is five (5) hours' pay, for being ordered to attend the
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.
An Investigation was held on June 2, 1987, to determine whether Claimants improperly condemned BN 401309 on February 27, 1987, on Carrier's B
Repair Track. It was Claimants' belief that said car had a thin flange on the
R-4 wheel and, accordingly, it was set out for repairs. Based on the investigative record, Carrier concluded that Claimants committed an egregious technical error when setting out BN 401309 and they were each assessed a disciplinary reprimand.
Form 1 Award No. 11765
Page 2 Docket No. 11585
89-2-88-2-100
In defense of their position, Claimants asserted that Carrier
committed a fatally defective procedural error when Carrier revised the
original Notice of Investigation. In the initial Notice of Investigation,
Claimants pointed out that Carrier indicated that BN 401309 was within
condemnable limits and thus it was properly set aside for repairs. Furthermore, Claimants argued that the gauges used to inspect the car for thin
flanges on February 27, 1987, were defective and subsequently removed on March
19, 1987, by supervisory personnel. In effect, they maintained that the condition of the gauges was the sole primary reason for the incorrect readings.
Contriwise, Carrier contended that the Notice of Investigation was
procedurally proper, since the evident typographical error in the initial
investigation notice was promptly corrected to read that BN 401309 was not
within condemnable limits. It further disputed Claimants assertion that the
gauges were removed on March 19, 1987, since the Car Foreman responsible for
inventory and replacement testified at the Investigation that he was never
notified to replace those gauges. This testimony was also affirmed by the
Lead Car Foreman who testified that he was never notified of the alleged five
missing gauges. It was Carrier's position, that Claimants improperly adjudged
BN 401309 condemnable and thus its removal and detailed inspection, including
removal of the wheel unnecessarily delayed Carrier's operations.
In considering this dispute, the Board finds no evidence that the
Notice of Investigation was defective or detrimental to the interests of
Claimants. While the initial issuance, to be sure, had a typographical error,
the mistake was subsequently corrected to reflect the true focus of the Investigation and Claimants were thereby fully aware of the nature of the inquiry.
Their testimony and substantive arguments clearly show a thoughtful defense.
Correlatively, we have examined the parties' respective arguments
vis-a-vis the condition of the gauges and the contested pivotal issue of their
removal and replacement circa March 19, 1987. As such, we must concur with
Carrier that no concrete verifiable proof has been adduced conclusively showing that they were mysteriously removed because of their defective condition.
This finding does not mean that Claimants' version of their condition and
whereabouts is incorrect, it only means that they have not established beyond
all peradventure of a doubt that the gauges were removed.
On the other hand, it might well be that the gauges used to inspect
BN 401309 on February 27, 1987, did, in fact, indicate that the car had a thin
flange on the R-4 wheel and thus it was not unreasonable to find the car
within the condemnable limits. There are no indications that Claimants failed
to follow prescribed inspection procedures and no indication that they were
palpably careless in their inspection. A presumption exists that the personal
gauges used by Carriers' supervisors gave a more accurate reading of the condition of the R-4 wheel, but this could be as a result of the finer measurement sensitivity of the supervisors' gauges. The original gauges were not
tested by Carrier immediately after the car was set aside, and thus there is
no way of knowing whether said gauges were defective. Furthermore, we have no
evidence as to what exactly happened to the five gauges. For these reasons,
we are impelled to give Claimants the benefit of the doubt and the instant
Claim is sustained.
Form 1 Award No. 11765
Page 3 Docket No. 11585
89-2-88-2-100
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
, Z
Nancy J. vwr - Executive Secre ary
Dated at Chicago, Illinois, this 27th day of September 1989.