NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22612
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-8588) that:
(a) The Southern Pacific Transportation Company violated the
current Clerks' Agreement when it dismissed employe R. A. Dupree from
service; and,
(b) The Southern Pacific Transportation Company shall now be
required to compensate Mr. R. A. Dupree one day's pay at the rate of
Industrial Clerk Position No. 10, $55.19 per day, October 21, 1977 and
each date thereafter until April 3, 1978, the day and date he was reinstated with seniority u
OPINION OF BOARD: Claimant, assigned as industrial clerk on Carrier's
Los Angeles Division, entered the Carrier's service
as a clerk on September 21, 1965. He was removed from service on
October 21, 1977, for allegedly refusing to drive a certain designated
Carrier vehicle for the purpose of picking up an interchange list.
On the same date claimant was notified to attend an investigation,
scheduled for 9:00 A.M., October 27, 1977. After a lengthy investigation on October 27 and October 2
service on November 7, 1977. He was reinstated with seniority rights
unimpaired on April 3, 1978. The claim before the Board is for pay
for time lost while out of service.
The Board has carefully reviewed the lengthy transcript of
the investigation, as well as the submission of the parties. The
claimant contended throughout that the car involved, a leased 1975 tan
Nova, was not safe to drive and that he had notified his supervisors
to that effect. The transcript also contains substantial evidence
Award Number 22556 Page 2
Docket Number CL-22612
that other clerks, who had driven the car involved, considered it unsafe
and had so reported to their supervisors, including the Trainmaster who
removed claimant from the service. One clerk testified that he had
driven the car on October 19 and 20, and on October 20 when he had to
apply pressure to the brake "the front brake grabbed," causing the car
to swerve into oncoming traffic and an accident was barely averted.
There is no evidence that the car was tested by an expert
mechanic before the Trainmaster insisted on claimant driving it at
about 10:25 A.M., October 21, 1977, and removed claimant from the
service because he would not drive it. The record does show that on
October 23, 1977, two days after the occurrence here involved, while
being driven by a conductor, the car severed a tie rod when it hit
a rut in the road.
The record shows that the car had been driven approximately
60,000 miles; that vehicles are ordinarily replaced by the leasing
company in the mileage range of 55.,000 to 60,000 miles; and that a
replacement had been ordered in March 1977, but, through some mistake,
the order was not put through.
The Board does not condone insubordination on the part of
any employe. Neither will it support a Carrier requiring an employe
to perform a service when a real safety hazard may be involved. It is
our considered opinion that, with the complaints that had been
received as to the car being unsafe, the Carrier would at least have
had it checked by an expert mechanic before insisting upon the
claimant driving it, espepially,when the record shows that claimant
could have been assigned another vehicle to drive.
Based on the entire record, the Board concludes that the
Trainmaster precipitously suspended claimant from service about
10:25 A.M., October 21, 1977, which, from the evidence, was not
accomplished in a very calm manner. We also conclude that claimant's
subsequent dismissal from the service was improper, and that claimant
is entitled to be compensated for time out of service in accordance
with Bile 52 of the applicable agreement.
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
That the parties waived oral hearing;
Award Number
22556
Page 3
Docket Number CL-22612
That the Carrier and the Employes involved in this dispute
are respectively Carrier and Employes within the meaning of the
Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
That the Agreement was violated.
A W A R D
Claim sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST;
Executive Secretary
Dated at Chicago, Illinois, this 16th day of October
1M.
i
Serial No.
307
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
INTMTRETATION NO. 1 to AWARD NO.
22556
Doer No.
e.-22612
NAME OF ORGANIZATION: Brotherhood of Railway,
birline and
Steamship Clerks,
Freight Handlers, Express and Station Employes
NAME 0f CARRIER: Southern Pacific Transportation Company
(Pacific Lines)
Upon application of the representatives of the employe involved
in the above award, that this Board interpret the same in light of the dispute between the parties a
in Section
3.,
First (m) of the Railway Labor Act, as approved June
21, 1934,
the following interpretation is made.
On October
16, 1979,
this Division issued its Award No.
22556
in dispute between the parties, in which the claim of the employer read:
"(a) The Southern Pacific Transportation Company
violated the current Clerks' Agreement when it dismissed
employe R. A. Dupree f=m serrdqe; and
(b) The Southern Pacific Transportation Company
shall now be required to compensate Mr. R. A. Dupree one
day's pay at the rate of Industrial Clerk Position Noe 10j,
$55·19
per days October
21, 1977
and each date thereafter
until April
3, 1978,
the day and date he was reinstated with
seniority unimpaired."
We sustained the claim, with the following language:
"Based on the entire record, the Board concludes that
the Trainmaster precipitously suspended claimant from service
about
10:25
A.M.., October
21, 1977,
which, from the evidence,
was not accomplished in a very calm manner. We also conclude
that claimant's subsequent dismissal from the service was
improper, and that claimant is entitled to be compensated for
time out of service in accordance with Rule
52
of the applicable agreement."
Rule
52
of the applicable agreement, referred to in the award
pertained to the method of computing pay "If the final decision decrees that
charges against the employe were not sustained..."
-2-
The question at issue in the request for interpretation pertains
to vacation or pay in lieu thereof during the year
1978,
It is well settled that the purpose of an interpretation is to
explain the Award as originally made and not to make a new Award or consider issues that were not be
When Award No. 22556 was issued there was no question before the
Board concerning vacation or pay in lieu thereof for claimant in
1978# and
such issue may not properly be passed upon through the guise of an interpretation. The request f
Referee Paul C. Carter, who sat with the Division as a neutral
member when Award No. 22556 was adopted,, also participated with the Division
in making this interpretation.
NATIONAL RAILROAD AWTJS20M BOARD
By Order of Third Division
ATTEST:
Executive Se
Dated at Chicago.. Illinois, this 26th day of February
1982.
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