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.
The case before this Board involves Claimants Hustad and Leier who were each assessed a mark of censure on their personal records, following a formal Investigation. When the events giving rise to the discipline occurred, Claimant Hustad was employed as a Foreman, and Claimant Leier was employed as a Machine Operator.
On June 9, 1993, while Claimant Leier operated a ballast regulator, he stated that he "bumped into" Pup Tamper BNX 5600176 that was operated by Machine Operator Booth. Booth's machine was struck in the rear, while he "was waiting at the west switch at Blair."
Clearly, the evidence in the record warrants the conclusion that Claimant Lcier violated Rule 65, which, in relevant part, provides that "101n-track equipment . . . must approach no closer than 150 feet to a standing train or engine . . . ." Moreover, Rule 65 goes on to state that "101perators of on-track equipment are responsible for maintaining a safe braking distance between other on-track equipment.
Claimant Hustad did not see the collision on June 9, but he heard the "sounds" which were caused by the collision. He "assumed a couple of machines bumping together." He stated that there was no damage to the machines. Claimant Hustad went on to state that he talked to each of the Operators and that "they all stated they were okay."
After the collision, Booth said that he told Claimant Hustad he had "a light pain in my neck, but it didn't last very long. I'm okay." Claimant Hustad did not report any injury to an employee arising from the incident of June 6. Two months after the incident, Form 1 Award No. 32497
on August 6, Booth riled a personal injury report with respect to injuries which he sustained from the June 6 collision.
Based upon the record, Claimant Hustad violated Rule No. 885 which, in relevant part, require that "all accidents resulting in injuries to employees on duty . . . regardless of the extent of injuries . . . must be promptly reported to the general manager."
Turning to a procedural issue raised by the Organization, it claims that the Carrier violated Rule 40 1 which, in relevant part, provides:
Rule 40 1 requires that the Company and employee or duty authorized representative agree to a postponement of an Investigation. Initially, Claimants Hustad and Leier along with Booth received notice on August 9 that an Investigation was to be held on August 18, 1993. Later that day, on August 9, they were given notice by the Carrier that the Investigation was postponed at the request of Trainmaster Black.
The Organization contends that contrary to Rule 40 1, there was no agreement between the parties with respect to the postponement of the August 18 Investigation. The Organization points out that the notice of postponement of the August 18 Investigation was a unilateral action of the Carrier inasmuch as the Claimants and Booth did not agree to the postponement. In the notice of postponement they were merely directed to "acknowledge receipt" by affixing their signatures to the notice each of them received.
It is of great weight that there was no objection raised by the Claimants and Booth to the Carrier's postponement of the Investigation. Nor is there any evidence in the record that the Organization objected to the Carrier's postponement of the Hearing. Absent evidence that the Carrier's request was rejected by the Claimants, Booth and the Organization, leads the Board to conclude that they acquiesced in the postponement of the Investigation by the Carrier.
In addition, there was no showing by the Organization that the postponement caused any prejudice to the Claimants. Indeed, there were two additional postponements of the Investigation which were requested by the Organization, and agreed to by the Carrier. Form 1 Award No. 32497
It may very well be that with respect to one of the requests by the Organization for a postponement of the Investigation, the Organization's representative acted solely on behalf of Booth. This Board does not believe that consent is required by the representatives of Claimants Leier and Hustad. The Agreement with the Carrier sets forth the Organization as a party to the Agreement. Both the representative for Booth and the representatives for the Claimants are employed by the Organization. Accordingly, it is presumed that the representatives for Booth and the Claimants acted on behalf of the Organization.
As with the initial postponement of the Hearing from August 18 to August 26, neither the Claimants nor Booth, and their duly authorized representatives raised an objection to the request for postponement by the representative for Booth. Accordingly, if agreement by the representatives of the Claimants were required, it was supplied by their silence or acquiescence to the postponement of the Investigation.
Both Claimants Leier and Hustad received letters of censure for violating Rules 65 and 885, respectively. This Board concludes that the penalty is not arbitrary, discriminatory or excessive.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.
LABOR MEMBER'S DISSENT
TO
AWARD 32497, DOCKET MW-32681
(Referee Cohen)
The problem here is that a review of Transcript Page 3 of the investigation, which was eventually held on September 21, 1993, would clearly reveal that the vice Chairman strenuously objected to the fact that the initial postponement was done so by the Carrier without consent of the parties. Rule 401 is a contractual obligation to which the parties to the Agr fail. The provisions are so crystal clear that it is unimaginable that the Board would sanction such clear and unambiguous language as somehow being less than mandatory. The Majority did not stop there in its perversion of the clear terms of the Agreement. The Majority held:
As we stated above, the requirements of Rule 40 are clear and unambiguous and should not be subject to misinterpretation. The parties are obligated to comply with the clear terms of the Agree- Labor Member's Dissent
ment and failure to do so is fatal to the party who violates said provision. Mandatory language is agreed to by the parties and is meant to be strictly enforced. There is no provision for either party to show that they were somehow "prejudiced" before demanding adherence to the clear and unambiguous language of the collectively bargained agreement. In this connection, we invite attention to Award 24731, one of the six awards presented to the Board in support of our position to which the Ma
The record of this case clearly shows that the Carrier blatantly ignored the clear and unambiguo and the claim should have been sustained. Instead, the Majority simply decided to dispense its own particular brand of industrial justice, much to the detriment of the clear and unambiguous language of the Agreement. This award is of no precedential value.