Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13672
Docket No. 13556
02-2-00-2-36
The Second Division consisted of the regular members and in addition Referee
Herbert L. Marx, Jr. when award was rendered.
(Brotherhood Railway Carmen Division
( Transportation Communications International Union
PARTIES TO DISPUTE:
(Delaware and Hudson Railway Company, Inc.
STATEMENT OF CLAIM:
"Claim of the Committee of the Union that:
1. That the Delaware and Hudson Railway Company (Division of CP
Rail) violated the terms of our current agreement, in particular
Rule 26.1 when they arbitrarily assessed the record of Jack Hough,
with ten (10) demerits as a result of an investigation held on April
29, 1999.
2. That, accordingly, the Delaware and Hudson Railway Company be
ordered to remove the discipline and all related correspondence
from the record and file of Carman Jack Hough."
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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 were given due notice of hearing thereon.
Form 1 Award No. 13672
Page 2 Docket No. 13556
02-2-00-2-36
Following an investigative Hearing, the Claimant was assessed a disciplinary
penalty
of
ten demerits in reference to an occurrence which the Organization
summarizes as follows:
"On March 8, 1999, at approximately 4:50 P.M. the claimant was ordered
by the yardmaster to go to the west end of No. 1 Running Track to work
Train 521. The rear of the train rested between the repair track and No.
1 Running Track. As the claimant proceeded between No. 1 Running
Track and the repair track, the 4-Wheel `Gator' he was driving slid on the
snow and ice, striking the rear car of Train 521."
There is no dispute as to the accuracy
of
this account.
The Carrier charged the Claimant with violation
of
ten Safety Rules. The Board
finds citation
of
most of these Rules simply redundant. Nevertheless, the central issue
remained as to whether the Claimant failed to operate his vehicle in a manner which
could have avoided the accident and the resulting damage.
The Carrier argued that the Claimant recognized the hazardous condition
of
the
roadway. The Claimant stated his awareness of "close clearance" in attempting to reach
his work area. In sum, there is support for the conclusion that the Claimant failed to
follow the basic principle, "In case of doubt, the safe course must be followed." The
Board concludes that the corrective discipline was appropriately applied.
Two procedural matters require discussion. The Organization argued the
Hearing was defective in that the Charging Officer was not present. As pointed out by
the Carrier, the Charging Officer served only an administrative function in issuing the
charge, and there was no showing that she would have been able to provide pertinent
testimony as to the incident itself.
The Organization also argued that further discussion at the Hearing should have
been permitted concerning previous allegedly similar incidents in which no charges were
initiated. While the Organization
is, of
course, entitled to claim disparate treatment, this
rarely warrants a full review of such matters within the Hearing itself.
Form 1 Award No. 13672
Page 3 Docket No. 13556
02-2-00-2-36
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 11th day of February,, 2002.