Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12148
SECOND DIVISION Docket No. 12114-I
91-2-90-2-291
The Second Division consisted of the regular members and in
addition Referee Raymond E. McAlpin when award was rendered.
(D. A. Nelson
PARTIES TO DISPUTE:
(Soo Line Railroad Company
STATEMENT OF CLAIM:
1. That the Soo Line Railroad did unjustly and in violation of the
agreement, suspended Carman D. A. Nelson from service from October 24, 1986
throught November 14, 1987.
2. That the Soo Line Railroad be ordered to compensate Carman D. A.
Nelson for all lost time as result of suspension including 15 days vacation
and 2 personal days, along with all other benefits unimpaired.
3. That the Soo Line Railroad be ordered to pay Carman D. A. Nelson
interest at the current rate per annum for any payment he may receive as result of this claim.
4. Rule 19, bulletining of vacancies.
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 September 27, 1986, Claimant in the performance of his duties was
operating a Kutobo Tractor when he was involved in a collision with a moving
freight car. Carrier subsequently held an Investigation on the matter of
Claimant's failure to safely perform his duties, and, as a result, his employment was terminated effective October 24, 1986.
The Brotherhood of Railway Carmen initiated a claim and appeal on
Claimant's behalf which resulted in the matter being submitted to PLB 3618 for
resolution. The claim submitted. to PLB 3618 reads as follows:
"1. That Carman D. A. Nelson was unjustly dismissed from service of
the Company on October 24, 1986.
Form 1 Award No. 12148
Page 2 Docket No. 12114-T
91-2-90-2-291
2. That the Soo Line Railroad Company be ordered to restore Cayman
D. A. Nelson to service and make him whole for all rights and bene
fits that are a condition of employment such as, but not limited to,
seniority, vacation, holidays, medical, dental and all group insur
ance benefits.
3. That the Soo Line Railroad Company Be Ordered To Compensate
Cayman D. A. Nelson for all lost time as a result of his unjust
dismissal from the service of the Carrier.
4. That the Soo Line Railroad Company be ordered to reimburse Cay
man D. A. Nelson for all losses sustained account loss of coverage
under health, medical, welfare and life insurance benefits during
such time he is held out of service.
5. That the Soo Line Railroad Company be order_~d to award interest
at the 12% per annum to Cayman D. A. Nelson for any and all payments
he may receive as result of this claim."
Pursuant to an interim disposition made by PLB 3618, Claimant was
returned to service in November, 1987. Award No. 15 of PLB 3618 was issued on
April 15, 1988 finding that Claimant had, in fact, failed to perform his as
signed duties but that the discipline of dismissal was too severe. In the
normal course of grievance handling in this industry, such would have ended
the matter.
However, two months prior to the adoption of PLB 3618, Award 15,
Claimant filed suit in the U. S. District Court, District of Minnesota, Fourth
Division, on the basis that:
'...plaintiff was subjected to discipline proceedings and ultimately
wrongfully discharged from his employment on or about October 24,
1986, on the unlawfully manufactured pretext of having violated defendant's work and safety rules during the above described incident
when, in fact, the motivation underlying both his job demotion and
consequent termination was retaliatory for his having spoken with
reporters on matters of: public safety and concern." (Emphasis added)
The Court, on August 11, 1989, dismissed the suit with prejudice.
However, by the agreement of counsel, the Court stipulated that Claimant could
file a grievance pursuant to the terms and conditions of the existing collective bargaining agreement, "...with respect to the issues arising in this litigation, more particularly the allegation that defendant retaliated against
plaintiff as alleged in Plaintiff's complaint." The Court also stipulated
that the Carrier would not raise a time-limit defense concerning such a claim.
The anomaly, self-evident in the Court's action, is that it apparently was not
made aware of the issuance of PLB 3618, Award 15 more than a year prior to its
order. PLB 3618 resolved the ONLY discipline proceeding that involved
Claimant's "discharge from his employment on
...
October 24, 1986."
Claimant, on October 8, 1989, did file a claim and it is the subsequent progression of that matter that is now before this Board.
Form 1 Award No. 12148
Page 3 Docket No. 12114-T
91-2-90-2-291
Our review of the record before us requires that this matter be dis-
missed for the following reasons.
First, the Statement of Claim filed with this Board on November 25,
1990, listed above, and the Claim submitted to PLB 3618, quoted above, involve
the same action - Claimant's removal from service on October 24, 1986 - and
seeks the same reparations. Since Award 15 of PLB 3618 disposed of the
matter, this Board has no jurisdiction to re-try the same matter. See Second
Division Awards 11394, 11427, 11708, 11999. Nor may this Board be used as a
vehicle in which to challenge the decision of PLB 3618 (Third Division Awards
20455, 22736; Second Division Award 7859).
Second, even if it was the Court's equitable desire that Claimant
have a second opportunity to progress a claim, pursuant to the requirements of
the agreement between the parties, concerning his contention of retaliation
for talking to reporters such is not covered in the claim submitted to this
Board. We cannot go beyond the claim that has been submitted to us.
Third, even if we were able to go beyond the claim submitted and
consider the events of June, 1986, it seems that that matter was resolved,
with the Organization's assistance, in the statement made by the Assistant
General Manager on July 29, 1986 that Claimant "was to remain in the Yard to
inspect trains as per bulletin."' There is no evidence, beyond Claimant's
continued assertions, of any connection between the events of June and
September, 1986.
Finally, on the 'record before us, we do not find evidence sufficient
to warrant a finding of violation of the 1988 amendment to the Federal Rail
Safety Act, 45 U.S.C. Section 441 (a) (First Division Award 24059; Third Division Award 28725). Of the two events Claimant has joined in his assertion of
discrimination, one was resolved on the property and the second was disposed
of in the decision of PLB 3618 leaving no matter for this Board to decide.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
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Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 25th day of September 1991.