Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28547
THIRD DIVISION Docket No. MW-27514
90-3-86-3-773
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Duluth, Missabe and Iron Range Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier's disciplinary disqualification of Mr. D. E.
Anderson as a Class 'A' and 'B' machine operator for alleged violation of
Section 'B' of the Rules of the Engineering Department was excessive and
unwarranted.
(2) Mr. D. E. Anderson shall be reinstated as a Class 'A' and 'B'
machine operator with seniority as such unimpaired and he shall be compensated
for all wage loss suffered."
FINDINGS:
The Third 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.
The Claimant is employed by the Carrier as a machine operator. At
the time of the events precipitating the instant dispute, he was assigned as a
Class "B" machine operator at Keenan Yard.
On December 16, 1985, Claimant was instructed by the Carrier to clean
crossings in the Fairlane area of Keenan Yard with Swingloader 15. Centralized Traffic Control (CTC)
Claimant allegedly fouled the tract: at Norway Ridge without obtaining permission from the CTC Dispa
Form 1 Award No. 28547
Page 2 Docket No. MW-27514
90-3-86-3-773
Claimant was subsequently directed to attend an Investigation in
connection with his alleged failure to properly perform his duties
'...
on
December 16, 1985, when
...
operating SL-15 at Norway Ridge."
The Investigation was held on January 23, 1986. That same day, a
second Investigation was held to determine whether Claimant improperly
operated a Swingloader on December 18, 1985, resulting in an accident and
damage to a pick-up truck owned by a member of the public. On that charge,
Claimant was found guilty and suspended for five working days. No claim was
initiated on that particular charge.
Following the Investigation concerning the instant matter, Claimant
was found guilty of this charge as well. As a result, Claimant was thereafter
notified that his rights to operate "Class A" and "Class B" machinery were
removed.
In its Submission before this Board, the Organization has advanced
essentially three arguments in support of its contention that Carrier's action
was unjust and improper. First, it asserts that Carrier's letter of charge
did not set forth with any precision or specificity the charges leveled
against the Claimant in accordance with Rule 10(b) of the parties' collective
bargaining agreement. Second, the Employes maintain that Carrier failed to
present any probative evidence that Claimant failed in his duties as machine
operator on the date in question, and therefore Claimant could not properly
have been found guilty of any rules violations. Third, the Organization contends that the offense, e
the Claimant as a machine operator of "Class A" and "Class B" machinery.
The Board has reviewed the record in its entirety and has carefully
examined the correspondence between the parties during the handling of this
dispute on the property. We find absent here any evidence that the Organization raised a question co
objection was made as to the Carrier's alleged failure of proof prior to the
submission of this case before the Board. Even taking the correspondence from
the Organization in its most favorable light, it is quite clear that there
were no contentions raised during the on-property handling of this matter
other than the complaint concerning the level of discipline.
One of the most fundamental and well-established precepts in cases
before the National Railroad Adjustment Board is that arguments made on appeal
must be limited to those which were made during the handling of the case on
the property. This Board cannot consider issues raised for the first time on
appeal. Accordingly, questions as to the sufficiency of the charges and the
weight of the evidence, having never been advanced by the Organization prior
hereto, must now be deemed waived.
Form 1 Award No. 28547
Page 3 Docket No. MW-27514
90-3-86-3-773
The only issue, then, that is properly joined for consideration is
whether the demotion of the Claimant was reasonable and proper. As to that
point, we quite agree with Carrier that its primary consideration is to ensure
a maximum of safety in the handling of trains and equipment. That high level
of safety would be jeopardized if Carrier is required to operate with employes
who have demonstrated a lack of ability to respond to rules and warnings such
as is shown here. Claimant has a record of repeated failures in this regard,
we note. Carrier, recognizing its responsibility for lives and property, has
determined that it should not further risk the handling of "Class A" and
"Class B" machinery to this employe. Under all the circumstances, we conclude
that Carrier's determination is not an arbitrary or capricious one. The
Claim, therefore, must be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: _
ancy J. D - Executive Secretary
Dated at Chicago, Illinois, this 27th day of September 1990.