Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11997
SECOND DIVISION Docket No. 11927
91-2-90-2-72
The Second Division consisted of the regular members and in
addition Referee Donald E. Prover when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Kansas City Southern Railway Company
STATEMENT OF CLAIM:
1. That the Kansas City Southern/Louisiana & Arkansas Railway Company is violative of Rule 29(1) of the April 1, 1980 controlling Agreement and
has unjustly dealt with and damaged Electrician D. D. Tyler at Shreveport,
Louisiana when they denied him a fair and impartial investigation, resulting
in the unjust and improper discipline of a Letter of Reprimand placed in his
personal record file on March 13, 1989.
2. That, accordingly, the Kansas City Southern/Louisiana & Arkansas
Railway Company be ordered to remove from Electrician D. D. Tyler's personal
record all reference to this discipline matter including the notice of investigation and hearing, all subsequent postponements and rescheduling notices,
the transcript of investigation, Carrier's Letter of Discipline dated March
13, 1989, and that this matter never be referred to again.
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 a regular assigned Electrician at Carrier's diesel
facility at Shreveport, Louisiana. As part of his duties, Claimant assisted
in making engine movements. At approximately 1:45 P.M. on December 28, 1988,
the Claimant was on the ground adjacent to Track 71 in the shop area. He gave
a signal to the individual operating Locomotive 4359 to proceed north on Track
71. In making the move across a fire lane the locomotive struck a company
truck.
Form 1 Award No. 11997
Page 2 Docket No. 11927
91-2-90-2-72
Under date of January 3, 1989, the Claimant was notified to attend a
formal Investigation. The notice reads in part, as follows:
"Please arrange to be present *** for a Formal
Investigation to ascertain the facts and determine your responsibility in connection with a
crossing accident on Wednesday, December 28,
1988, at approximately 1:45 p.m. at the north
end of 71 track in fire lane next to the sand
tank involving locomotive 4359 and company truck
2360 in which truck 2360 was damaged."
Following the Investigation held on February 7, 1989, the Claimant
was notified under date of March 13, 1989, that he was found at fault for not
properly protecting crossing at 71 track north.
The Organization argues that Carrier violated Rule 29(1) in that
Claimant was deprived of a fair and impartial Investigation because the notice of Investigation did not contain a precise charge, but rather the notice
implied the Investigation was for the sole purpose of developing a charge.
After reviewing the notice of Investigation it is our conclusion there is no
basis for the Organization's argument. The notice specifically sets forth the
time, date and location of the incident that is to be investigated. The notice indicates the Investigation was being held to ascertain facts and determine responsibility in connection with the December 28, 1988 incident. We
believe the notice meets the requirement contained in Rule 29(1) that: "such
employee *** be apprised of the precise charge."
The Organization takes exception to the fact that the Supt. of Shops
notified the Claimant to attend the Investigation and also conducted the Investigation. The Board has ruled on this argument in numerous Awards. The
Board has ruled that the fact an individual acts in a dual capacity does not
in and of itself constitute reversible error when it appears from the transcript of the Investigation that the Claimant was afforded a fair Hearing.
Our review of the Investigation testimony indicates that the Investigation was
conducted in a fair and impartial manner. The Claimant and his representatives were given every opportunity to fully question all witnesses and the
other employees who were in attendance at the Investigation.
The Organization argues that the Carrier did not prove that Claimant
did not properly perform his duties or that he was at fault; the Organization
places the blame on the individual who was driving the truck. We do not agree
with the Organization's argument. The Claimant admitted at the Investigation
that he gave the signal for the engine to start up and proceed north. The
Claimant gave several answers as to which way he was looking at the time of
the accident, however, it is evident that he was not alert and properly positioned to observe any vehicular traffic that might be moving west on the fire
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Page 3 Docket No. 11927
91-2-90-2-72
lane. The Claimant gave no explanation as to why he did not observe the com
pany truck approaching on the fire lane; there is no indication that visibil
ity was poor on December 28, or that the truck was speeding. Once having
given the signal to proceed to the individual operating the engine the Claim
ant had the responsibility to ensure the safety of the movement over the fire
lane. This he failed to do. We, therefore, agree with the Carrier that Claim
ant was at fault in this case for not properly protecting the crossing at 71
track north.
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 16th day of January 1991.