PUBLIC LAW BOARD N0. 1844
AWARD NO. 78
PARTIES
Brotherhood of Maintenance of Way Employes
and
Chicago and North Western Transportation Company
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The discipline assessed Machine Operator P. Folsom of disqualification and loss of all machine operator rights on all Class A, B
and C machines, and on all machines common to Track and B&B
Departments was without just and sufficient cause and wholly
disproportionate to the alleged offense. (System File D-11-1-406).
(2) Machine Operator Folsom be reinstated as Machine Operator and
reimbursed for all wages lost for violation referred to in part
one (1) of claim.
OPINION OF BOARD:
Claimant was the regularly assigned operator of a Speed Swing, at South
Pekin, Illinois. On March 13, 1979 that machine was found to be inoperable
with extensive age. Detailed inspection on March 20, 1979 indicated the
damage was caused by lack of antifreeze in the cooling system water which
froze, cracking the radiator. That March 20, 1979 inspection also revealed
loose or missing bolts in the swing sprocket and motor mounts. Upon due
notice and following proper adjournment, a hearing was held on March 30, 1979
on the following charge:
Your failure to properly maintain speed swing, System
#17-1817, located at South Pekin, IL., which was
assigned to you under Bulletin #87 dated July 1, 1977,
and awarded to you July 14, 1977.
1
2
Subsequently, Claimant was notified by letter of April S, 1979 that he had
been found guilty as charged and assessed discipline as follows:
Disqualified on, and loss of, all machine operator rights
on all Class A, B, and C machines, and on all machines
common to Track and B&B Departments.
The Organization filed the present claim appealing the disqualifications
on grounds that: (1) Carrier had not adduced sufficient evidence to prove
that Claimant was culpable for the damage to the machine, and (2) arguencka
the penalty of total disqualification was too harsh.
1Nhen Carrier disciplinary action is challenged under contract provisions
like Rule 19, management has the burden of proving inter alia that a pre-
ponderance of the record evidence supports a finding of culpability. In the
present case, Carrier has demonstrated persuasively that the machine damage
was caused by someone leaving water in the cooling system without antifreeze
during below-freezing temperatures.
Claimant testified that the antifreeze
level was tested in Fall 1978 at minus 23°, but thereafter he added water
periodically. Claimant conceded that he did not add additional antifreeze
even though he knew that he was diluting the antifreeze in the radiator to the
paint where it lost effectiveness. Rather, he claims that he drained the
radiator each night and filled it each
morning. He
insists that someone else
must have left water in the machine over the weekend of March 10-11, 1979.
Even if arguenda Claimant's theory was persuasively demonstrated, his negligent failure to keep up the antifreeze protection was the ultimate cause for
the machine being damaged. Given the clear breach of his maintenance duties
on this machine, plus his unfavorable prior retard, we find no basis to
reverse Carrier's assessment of disqualification.
initial strain on Claimant's credibility, he initially testified that his
failure to report for work March 26, 1979 was due to his being "still under
the influence of a barbiturate"and that he "was not released from that drug
until April 2." Later in the record Claimant testifies that he was in jail
until April 3 and was released from the barbiturate on April 9.
It is apparent, therefore, that the reason for Claimant's failure to
report for work on March 26, 1979 was his incarceration up to and including
April 3, 1979. Clamant's failure to report caused the activation of the selfoperating forfeiture in Rule 54. It is well established that arrest or
incarceration can not excuse an employe's failure to protect his assignment.
Awards 3-22383 and 3-22451.
AZVARD
Claim denied.
isc en,-1~a_~n_nan
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