NATIONAL RAILROAD ADJUS51ENT BOARD

Award Number 23858

THIRD DIVISION Doc'set Number CL-23906

T. Page Sharp, Referee

(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers. Express and Station Flaployes
PARTIES TO DISPUTE:
(Norfolk end Western Railway Company

.

STATMaL4T OF CLA314: Claim of the System Committee of the Brotherhood (GL-938O) that:

1. Carrier violated the Agreement between the parties when on April 24, 1979, they arbitrarily and capriciously assessed Clerk C. A. Eckelberry fifteen (15) days deferred suspension*

2. Carrier's action was unjust., unreasonable obi an abuse of Carrier's discretion. The discipline was assessed after the hearing clearly disproved the charge.

3. Claimant's record shall be cleared of this chargA and (terrier shall compensate Ma. Eckelberry far all time lost as a result of their arbitrary action.

OPINION OF HOARD: Claimant, C. A. Eckelberry, held the position of aperatar-
clerk "1U", Lorain,, Ohio, when she was notified that a truck hauling a 30 foot sailboat was stalled and the sailboat was on the main line of the Norfolk sad wasters Railway Oompany at the Beaver Perk Road crossing at Lorain, Ohio. Subsequently train 72 SLT hit the sailboat at the crossing resulting is same personal charged that:

"Yon are hereby charged with your failure to notify the crew on the 72 SLT Engine NW` 1522, that s Sailboat on a trailer was obstructing the NW Main track at the Beaver Park crossing Lorain,, Ohio on May 26, 1979 after you were notified by telephone of such obstruction at approximately 640 A.M. May 26, 1979 while you were performing service on the 3rd trick position of operator-clerk, RU office, Loraia, Rio assigtment cazmeacing at 1159 P.Di. May 25, 1979, resulting is property damage and personal ixyjtnyy.·

A thorough investigation vas held and as a result Claimant was assessed with fifteen days deferred suspension.

While this case was pending at the National Railroad Ad3uatiaent Board, Public Law Board No. 2916 decided the petition of the Brotherhood of Locomotive Engineers on behalf of Engineer I. L. 7apiteLla, who had been the engineer on

Award. Number 23858 Page 2

Docket Number CL-239

train 72 SLT when the accident is question occurred. The Public Law Board decided against the claim of Mr. Tappitells and stated:

"Our review of the record convinces us that on the date of the incident, the Claimant had knowledge that the crossing was blocked. In spite of the short notice, and the fact that the messages ma have been, to same extent, distorted (but he did respoad~, Claimant had sufficient time and distance to stop short of the collision."

Based on the doctrine of collateral estoppel this Board accepts the
fact the Engineer I. L. Zappitella had been notified. _

FINDINGS: The Third Division of the Adjustment Board, upon the whole record ate. all the evidence, finds and holds:

That the parties waived oral hearing;

That the (terrier 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.

NATIONAL RAILROAD AWM24MT BOARD

By Order of Third Division

ATTEST: Acting Executive Secretary
National Railroad Adjustment Board

BY
semarie Hrasch - Administrative Assistant

Dated at Chicago, Illinois, this 28th day of April. 1982./i _~ C ~ i y ~ J - ~, .

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