File TR-BRS-81-21


Parties United Transportation Union

 to and

 Dispute Norfolk and Western Railway Company
 (Former NKP-NLE District)

 Statement
 of Claim: Appealing the discipline of thirty (30) days actual
 suspension assessed Brakeman M. J. Chatterelli as a
 result of a formal hearing which connienced on
 February 3, 1981, reconvened on February 10, 1981
 and concluded same date.

 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 January 25, 1979, 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 January 17, 1981, was the rear brakeman on a train operating in short turn around service between Gambrinus and '. Brewster, Ohio. As a result of operating difficulties the crew was instructed to take their train in two pieces to Brewster.
 Claimant was required to make a cut some twelve car lengths from the caboose. The weather was cloudy, the temperature 28 degrees, and their was 6 to 11 inches of snow on the ground. Claimant injured his ankle during the uncoupling process. lie requested medical attention. Claimant was taken to the Massillon Community Hospital where he was examined, x-rayed and advised that he had suffered a sprained ankle. He was treated with an ankle wrap and ice packs. Claimant filled out the company injury report (CT-37) before being relieved.
 Subsequently on January 21, 1981 Claimant was given a notice to attend a formal investigation to determine his responsibility, if any.
 PL(3·2333
' -2- Award No. 11

      in connection with the January 17th incident, and also for persisting in unsafe practices as evidenced by his safety record and fifteen injuries sustained since 1955 were listed thereon.

    The hearing, which had been postponed, was held on February 3, 1980 at 10:00 AM and concluded that day. When the tape was being transcribed it was discovered that the tape recorder had malfunctioned. Consequently, on February 6, 1981 another notice bearing the same charges and advising that:

            "This hearing will be reconvened at 10:00 AM

            February 10, 1981... to complete testimony.


            This necessity is due to mechanical failure

            of the recording device, which resulted in

            part of the testimony not being recorded.-."


    As a result of this hearing, Carrier concluded Cldiindnt to ue responsible and assessed thirty (30) days actual suspension as discipline therefor.

    The Employees contend that there are a series of alleged procedural deficiencies which prohibit a review of the case on its merits. In sequential order they are:

    1. The notices of January 21 and 22, 1981 reflect that Carrier had prejudged Claimant by determining that he was culpable.

    2. Carrier unilaterally postponed the January 26,.1981 hearing without a valid reason therefor.

    3. The hearing held February 3, 1981 was not timely in that it was held in excess of 10 days of the date of occurrence.

          4. That other crew members were not present at the hearing.

    5. That Carrier failed to provide complete transcripts of the hearing conducted February 3, 1981.

    6. The investigation of past injuries violated the investigation rule.

    The Board concludes that some of the objections raised by the Employees are sufficient to overturn the discipline assessed.

    The two notices complained of do reflect prejudgement in that the injury received on January 17, 1981 was perceived by Trainmaster Williams

PLG3 · A 3 3 3

 ' -3- nwdro No. 11

        to have been Claimanl.'s lault and way hart. of cldimant's "violation of

        operating and safety rules .. `e~Q'pOUi^~pe''sist~dg`1tt`·inSldtf"1Ee&= ~:

        _l,ds,_;lytadcUqdAy_ypyryvj~aCpty.ivcord.: Ile then cited fifteen (15) injuries recorded over a 25 year span.

        When one looks to the actions taken subsequent to the notice for a determination of whether Carrier was being arbitrary and perfunctionary in accommodating its actions to the obligations required of it oy the provisions of Rule 31, the discipline rule, we find that Carrier violated

        Section 7(c) thereof reading:'


              "Employees or the company shall

              have the right to request postponement

              for valid reasons."


        Here, Carrier made no "request" for a postponement. It belatedly in the line of appeal, offered a rationale for "valid reason" which appears to be an excuse and not d "valid reason."

        We find no merit to contentions n and S. Claimant it was acknowledged was injured by himself. Hence, Carrier had no compelling reason for calling in the rest of the crew. Such fact, obviously, did not deter the Employees had they so seen fit to call them in.

        The malfunctioned recorder necessitated the reconvening of the hearing if Carrier were to provide a copy of the transcript to permit perfecting an appeal. There were circumstances so unique as to conclude Carrier acted in good faith thereon. No harm was shown by Carrier's required efforts to produce a transcript.

      .The record reflects that no investigations were ever held concerning the fifteen (15) previous recorded injuries. Henrej,,JLn_,.. lintialely investigation and not a review took place. No one could reassxlabiy be expected to remember the details of incidents spread over ;;.;a,25.,yeir span. This fact speaks for itself: Carrier's right to z.;Yiw'ieq aoe s riot give it a right to harass. Such action reflected a pre3udical attitude.

            The discipline is reversed for procedural reasons.

PLC. .333
                        -4- Awaro ;.;~. 11


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.


    · _ -~s~SPm~


P. L. Pats uras, oyee Member . N. Ray, Carrier i be
                                1


              r

                K'4 ZZ/

                thur Van Wart. Chairma

                and Neutral Member'


Issued at Wilmington, Delaware, May 17, 1982.