Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32285
Docket No. MW-32826
97-3-96-3-142
The Third Division consisted of the regular members and in addition Referee John
H. Abernathy when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
( (Eastern Lines)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline [twenty (20) day suspension) imposed upon Foreman
R. Diaz for alleged ` ... violation of Rules 1.6 and 20.15 of the Safety
and General Rules ... and Chief Engineer's Instructions 71.2.12.1 and
711.12.2 ***' because of his alleged failure to exercise care to avoid
injury to employer under his supervision and to see that they worked
safely, in connection with the personal injury sustained by Mr. E.
Espinoza on January 23, 1995, was arbitrary, capricious, on the
basis of unproven charges and in violation of the Agreement (System
File MW-95-79/MW D95-10 SPE).
(2) The discipline [twenty (20) day suspension[ imposed upon Assistant
Bridge Foreman P.O. Vest for alleged `... violation of Rules 1.6 and
20.15 of the Safety and General Rules ... and Chief Engineer's
Instructions 71.2.12.1 and 71.2.12.2 ***', in connection with the
personal injury sustained by Mr. E. Espinoza `*** while you were in
charge of your gang, in the absence of Bridge Foreman Rudy Diaz on
January 23, 1995 ....', was arbitrary, capricious, on the basis of
unproven charges and in violation of the Agreement (System File
MW-95-80/MW D95-9).
(3) The discipline [five (5) day suspension[ imposed upon B&B
Carpenter R Monita for alleged'... violation of Rules 1.2.5, 1.2.7 and
1.6 of the Safety and General Rules ***', in connection with the
alleged incorrect information submitted concerning the personal
Form 1 Award No. 32285
Page 2 Docket No. MW-32826
97-3-96-3-142
injury sustained by Mr. E. Espinoza on January 23, 1995, was
arbitrary, capricious, on the basis of unproven charges and in
violation of the Agreement (System File MW-95-81/MW D 95-8).
(4) As a consequence of the violation referred to in Part (1) above,
Foreman R Diaz' record shall be cleared of the charges leveled
against him, he shall be compensated for all wage loss suffered and
properly credited for vacation and all other benefits in connection
therewith.
(5) As a consequence of the violation referred to in Part (2) above,
Assistant Bridge Foreman P.L. Vest's record shall be cleared of the
charges leveled against him, he shall be compensated for all wage
loss suffered and properly credited for vacation and all other
benefits in connection therewith.
(6) As a consequence of the violation referred to in Part (3) above, B&B
Carpenter R Monita's record shall be cleared of the charges leveled
against him, he shall be compensated for all wage loss suffered and
properly credited for vacation and all other benefits in connection
therewith."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are
respectively carrier and employee 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 were given due notice of hearing thereon.
Carrier contends that before discipline was issued to these three Claimants, the
triggering incidents were thoroughly investigated and substantial evidence of guilt was
Form 1 Award No. 32285
Page 3 Docket No. MW-32826
97-3-96-3-142
uncovered. The hearing for Claimant Diaz was postponed for good cause and that none
of
the Claimants had their due process rights violated.
The Organization contends that there was not substantial evidence
of
guilt. In
addition, Carrier violated the agreement in the case
of
Claimant Diaz when it postponed
his Investigation and held his Investigation beyond the fifteen (15) days provided in the
Agreement. In addition, the Investigations
of
Claimants Diaz, Vest and Monita were
improper because requested witnesses were not presented and these Investigations were
not held on the seniority districts where the alleged violations occurred.
With respect to Claimant Diaz, this Board finds that there was substantial evidence
of
guilt, that his Investigation was postponed for good cause and that his Investigation
was proper.
With respect to Claimant Vest, this Board finds that the record contains
substantial evidence
of
guilt and that his Investigation was proper.
With respect to Claimant Monita, this Board rinds the record contains substantial
evidence
of
guilt and that his Investigation was proper.
AWARD
Claim denied.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders
that an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 13th day
of
November 1997.