NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22764
Joseph A. Sickles, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(The Baltimore and Ohio Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-8673)
that:
(1) Carrier violated the Agreement between the parties when it
determined that Operator-Clerk E. J. Staley violated Rules F and 108 of the
Operating Rules on May 27, 1976, and suspended him from service for thirty
(30) days, and
(2) Carrier, because of such wrongful action, shall clear the
service record of Mr. Staley in connection with discipline assessed and
compensate him for all wage losses suffered during the period June 25, 1976
to July 25, 1976, a total of twenty-one (21) working days.
OPINION OF BOARD: An engine traveling east from Newark, Ohio struck a
Maintenance of Way Tamper in the immediate vicinity
of Zanesville, Ohio and as a result, the Carrier notified the Claimant to
attend an investigation concerning responsibility, if any, in connection
with that incident.
The Claimant - an Operator/Clerk - was notified, subsequent to
the investigation, that he was assessed a discipline of thirty (30) days
suspension for assertedly failing to take appropriate action when he was
advised of a discrepancy in work authority and that he failed to notify
the Train Dispatcher of the discrepancy.
While we have considered the procedural objections stressed by
the Claimant, our determination of the case on its merits makes it
unnecessary for us to comment upon those asserted procedural deficiencies.
The Carrier urges that the record demonstrates that on two
occasions the Claimant was aware of an error in the working limits of the
Maintenance of Way Crew, but he did not inform the appropriate Train
Dispatcher.
Award Number 22765
Docket Number CL-22764
Page 2
Unquestionably, Operating Rule F does require employes to
promptly report accidents or any unusual conditions, and Operating Rule 108
directs employes to always take the "safe course" in case of doubt or
uncertainty.
The Board certainly does not, in any manner, condone an employe's
ignoring of a valid safety rule, nor do we ever feel it advisable to
permit an employe to take action inimical to the safety of others. But,
the fact remains that in this particular case, the Board has difficulty
in finding that the Carrier presented evidence to show that the Claimant
was, in any manner, culpable concerning the accident. It does appear that
the Carrier charged the accused with an offense of not having certain
advance knowledge - which was not really explored. Nor do we understand
the basis for a finding that his action, or inaction, led to or assisted
in the unfortunate accident.
the claim.
After a thorough review of the record, we are inclined to sustain
FINDIMS; The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds;
That the parties waived oral hearing;
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.
ATTEST:
~~
Executive Secretary
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 29th day of February 1980.