`-; PUBLIC LAW BOARD N0. 1838
Award No. 26
Case No. MW-PO-77-108
Parties Brotherhood of Maintenance of Way Employees
to and
Dispute Norfolk and Western Railway Company
Statement 1. The fifteen (15) days' actual disciplinary penalty of
of Claimant J. L. Bentley was without just and reasonable
Claim cause.
2. Claimant J. L. Bentley be paid for all time lost and
the discipline be stricken from his record.
Findings The Board, after hearing upon the whole record and all evidence,
' finds that the parties herein are Carrier and Employee within
the meaning of the Railway Labor Act, as amended, that this
Board is duly constituted by Agreement dated March 1, 1976,
that it has jurisdiction of the parties and the subject matter,
and that the parties were given due notice of the hearing held.
Claimant, on May 6, 1977, was a Welder-Helper and was requested,
on that date, to assist in moving machinery from Miner to
Kingston, Ohio to begin work at a new location. Claimant
operated motor car No. 236 and while enroute, after travelling
some ten miles, encountered a shower of rain which wet the
rails as well as the wheels on the machinery. The Operator
of the machine travelling ahead of Claimant indicated that
he was going to stop. Claimant acknowledged such signal.
However, because of the wet conditions and despite Claimant's .
best effort to stop the machine it collided with the stopped
machine causing injury to that Operator.
The Board finds the discipline in the particular facts of this
case was unreasonable, unfair and unjust. Here, Claimant had
' Award No. 26 -1$3e)
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not been qualified to operate a motor car. He had not taken
the motor car rules examination. In a spirit of cooperation
Claimant complied with the instructions his supervisor gave
him, to operate a motor car with four (4) heavily loaded
flat cars attached thereto. The record reflects that he tried
everything possible to stop the motor car. However, because
the wheels were locked and sliding the collision occurred.
The absence from the investigation of the Roadmaster, who was
a direct witness to the accident, the testimony of the
Operator of the first vehicle that it was not Claimants
fault because he failed to make sure whether the following
vehicle could, stop before reaching his location are all cause
for reversal of the discipline assessed. In the circumstances
the Board will sustain the claim.
Award Claim sustained as per findings.
Order Carrier is directed to make this Award effective within thirty
(30). days of date of issuance shown below.
A. . Arnett, Employee Member G. C. Ewars, airier Member
fur T. Van Wart, Chairman
and Neutral Member
Issued at Wilmington, Delaware, November 26, 1979.