Case No. 48?'
PUBLIC LAW BOARD N0. 2947
AWARD N0. 3
CONSOLIDATED RAIL CORPORATION
VS.
UNITED TRANSPORTATION UNION (T)
STATEMENT OF CLAIM: Please consider this our appeal on behalf
of Brakeman F. B. MacGregor who was assessed
the discipline of 'Dismissed in all capacities
from the service of Consolidated Rail Corpora
tion' for an alleged violation of 'your respon
sibility, if any, in connection with your alle ed
injury on Wednesday, April 2, 1987,-Rule 1304 ?a)
of Conrail Safety Rules S7A may apply' as the
result of an investigation held April 10, 1981
at Selkirk, N.Y. This appeal is to expunge Mr.
MacGregor's record and for compensation for all
lost time including fringe benefits from the time
he was removed from service until such time as he
is restored to service. This appeal is not to
be construed as an appeal for leniency.
FINDINGS: On April 3, 1981, carrier Posted to-claimant athis residence address by certified mail notice to attend an investigation scheduled for April 10
for the
followingstated purpose "to develop the facts and determine responsibility, if any, in connection with alleged injury Wednesday, April 2, 1981, at
approximately 2:30AM, at the east end of Selkirk Yard. Rule 1304 (a) of Conrail
Safety Rules S7A may apply. . . "
The cite-d rule reads as follows:
Rule 1304 (a):
"1304. Expect equipment to move on any track
in any direction at any time. Therefore,
employeesmust look in both directions before:
(a) Fouling or crossing track."
PLB N0. 2947
Award No. 3
Page No. 2
On the same day that the notice was posted claimant was also notified of
the impending investigation by telephone. The investigation was held as
scheduled, and at such investigation claimant and his representative challenged
the sufficiency of the notice since claimant had failed to receipt for the
certified letter mailed to him. In argument before this board the organization
continues to challange the sufficiency of the notice. This challenge is-without merit. The written notice was properly posted, and an employee cannot
escape responsibility by simply failing to accept mail. Furthermore, it is
certain that claimant understood the purpose of the investigation.
The transcript of such investigation contains clear and convincing proof
that claimant was culpable as charged. Claimant failed to keep the proper
lookout for the moving engine, and his injury was proximately caused by his
own negligence.
Claimant's culpability was established in an investigation which was con- -
ducted in an impartial and proper manner. The record is free of substantive
or procedural error.
In assessing discipline, carrier considered claimant'.s prior discipline
and safety record which reads as follows:
"February 8, 1977, bruised left foot,
February 11, 1977, fracture left 5th rib
mild contusions,
April 13, 1979, ruptured muscle left calf
off duty, lost time
October 7, 1979, bruised and sore lower
middle back
July 2, 1980, laceration bruised swollen
right forearm - bruised left hip.
Discipline: Individual responsibility in connection
with the personal injury at #1 Receiving Yard Selkirk
while member of B&A light crew, register 2:45AM failure
to properly report same - safety rules involved: 1000(B)
E.
PLB
N0. 2947
· Award No. 3
Page No. 3
C
Conrail S7A Rule R. Par. 1 and 3 Conrail Rule of the
Transportation Department and Safety Rules 1700(A, B
& D). Safety Rule 1702 (a) 1705 (D) S7A 7/2/80 out of
service and time attending investigation to apply as
actual discipline. 10/8/80 ten days actual suspension
violation of Rule T Conrail Rules of the Transportation
Department absent from duty since 8/5/80 without proper
authority, failure to mark up or acquire form MD40 request for medical service so as to obtain return to
work physical after absence due to injury sustained on
7/2/80 and release from Mr. Constantine and determined
able to return to work on 8/5/80. 11/5/80 discipline
modified to 10 days suspended suspension."
The record reflects that claimant is accident-prone to such a degree
that we find the carrier was justified in separating claimant from its
service, this for the good not only of claimant but also his fellowemployees.
AWARD
: Claim denied.
DAVID H. BFUJN, Neutral Member
Carrier Member . Y. ganization Member
APR 81983
L