Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28888
THIRD DIVISION Docket No. MW-29353
91-3-90-3-263
The Third Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (formerly The Chesapeake
( and Ohio Railway Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The twenty (20) days of actual suspension imposed upon Track
Foreman G. M. Wright for alleged failure to properly protect his work and
leave the track safe at the crossover into D Yard, Crandel Road on April 28,
1989 was arbitrary, capricious and on the basis of unproven charges [System
File C-D-4651/12(89-527) CON].,
(2) The Claimant shall have his record cleared of the charges leveled
against him 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.
Claimant was notified of an Investigation concerning his responsibility, if any, in conjunction
specific crossover prior to release of subsequent movements of trains at 1740
hours on April 28, 1989, and resulting in the derailment of three cars on
train 691. Subsequent to the Investigation, Claimant was assessed a twenty
(20) day actual suspension.
At the Investigation, the Organization requested a more precise and
exact charge. Specifically it asked for an explanation of what "properly
protect and make safe" meant. The Hearing Officer stated that the "...charge
letter is specific within itself ...and no further explanation is necessary."
The Organization proceeded under protest.
Form 1 Award No. 28888
Page 2 Docket No. MW-29353
91-3-90-3-263
Our view of the charge indicates that it is specific and that it is
reasonably calculated to place the employee on notice of the alleged action to
be reviewed. It may very well be that in a given case such a charge could be
so vague as to hamper the employee in preparation of a defense. As we reviewed this record, however,
was prepared to testify, he had other witnesses present to discuss the events
in question, and he had photographs ready to present into evidence.
This dispute presents a classic case of credibility resolution. The
Carrier presented witnesses who were specific in their views of the cause of
the derailment, even though they may have differed in certain minor areas.
The Claimant denied that his actions were the cause of the incident, and he
presented witnesses. In such a circumstance, this Board is powerless to
disturb the findings of the Hearing Officer who was present and assessed the
evidence and testimony, unless his assessment is arbitrary and capricious
under the record. We can not draw any such conclusion here.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ncy J. er - Executive Secretary
Dated at Chicago, Illinois, this 30th day of July 1991.