I .
SPECIAL BOARD OF ADJUSTMENT N0. 279
Award No. 281
Case No. 281
File 247-7129
Parties Brotherhood of Maintenance of Way Employes
to and
Dispute Union Pacific Railroad Company
(Former MOPAC)
Statement
of Claim: (1) Carrier violated the current working agreement
especially Rule 12, when Track Welder H. D. Pelton and Track
Welder Helper J. T. McGohan were dismissed from the service
effective December 13, 1985.
(2) We are therefore requesting that Mr. Pelton and Mr.
McGohan be returned to service with all wage loss suffered
and have their record cleared of all discipline in the
charge. Also, that they have all vacation rights restored,
including seniority and vacation restored unimpaired.
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 5, 1959, that it
has jurisdiction of the parties and the subject matter, and that the
parties were given due notice of the hearing held.
Claimant Pelton, a Welder with over 14 years of service, and
Claimant McGohan, a Welder Helper with 11 1/2 years of service, on
November 26, 1985, were assigned to Welding Gang No. 7246 working in
the vicinity of Little Rock, Arkansas. Both Claimants were working
near MP397 on the North Little Rock subdivision assisting a track gang
in replacing a defective rail.
-2- Award No. 281
Claimants were required to operate their assigned vehicle to
clear the track in order to permit a number of trains to pass.
Claimants Pelton and McGohan with McGohan operating the vehicle headed
south and moved into McDonaldson Siding. After the trains had passed,
the hi-rail 6947, operated by McGohan, then proceeded back north from ,
Mceonaldson Siding to MP397, where Section Foreman Stewart and the
members of his track gang were engaged in changing out a broken rail.
Said hi-rail vehicle approached the area where Stewart's gang
were working, when within 1/2 mile south thereof, it was raining
lightly at the time, Claimant McGohan let up on the accelerator and
the vehicle continued in a northerly direction until it reached a
distance approximately 2 pole lengths south of where Foreman Stewart
and his gang were working. McGohan informed Pelton that he did not
believe that he would be able to stop hi-rail 6947. Pelton
immediately got on the outside of the vehicle and attempted to warn
the employees working on the track. Said employees did not hear or
see the vehicle. The hi-rail vehicle struck Foreman Ray Stewart, who
as a result suffered a fractured right hip, and also Track Laborer Q.
C. Baker who was in the center of the track removing anchor bolts.
Thereafter, hi-rail 6947 continued in a northerly direction and
finally rolled to a stop a distance of approximately 100 feet from
where Foreman Stewart was struck.
A formal investigation was held in connection with the incident.
As a result each Claimant was notified by the Superintendent under
December 13, 1985:
-3- Award No. 281
"You are hereby advised that your record has this date been
assessed with 'DISMISSAL' account your violations of Rules
1419 and 1421 of the MofW Rules dated April 28, 1985, in
connection with failure to properly control hi-rail 6947
resulting in striking and injuring track Foreman M. R.
STEWART, while working as welder helper (welder) on the
Little Rock Subdivision at about 11:30 AM, November 26, 1985
near Mile Post 397 on the Little Rock Subdivision.
Your record now stands 'dismissed'.'
It appears that Carrier invoked the doctrine of res ipsa loquitor
(the thing speaks for itself). Said evidentiary rule permits the
inferring of negligence to the wrongdoer (claimants), simply stated,
because the accident happened. Track Foreman Stewart while working
with his gang was struck by an on track hi-rail vehicle operated by
Claimant Welder Helper J. T. McGohan.
In applying that doctrine it requires that the nature of the
accident and the circumstances surrounding it reasonably lead one to
believe that in the absence of negligence the injury or incident would
not have occurred. Further, it requires that the thing causing the injury or
incident be demonstrated to be under the exclusive control of the wrong doer,
i.e., the claimants.
It was the injury to Track Foreman Stewart that became the
linchpin in Carrier's charge:
"That you failed to properly control said vehicle resulting
in Track Foreman M. R. Stewart being struck and injured..."
It is found that the evidence was too insufficient to support the
conclusion of culpability on the part of Claimant Track Welder H. D.
Pelton. The evidence failed to show what Pelton did that contributed
to Foreman Stewart being injured, or, as charged, what did Pelton do
or contribute to the failure of McGohan to properly operate hi-rail
-4- Award No. 281
vehicle 6947. Conversely, what did Claimant Pelton fail to do that he
should have done? Consequently, the claim on behalf of Claimant
Pelton must be sustained.
The essence of the conclusions reached were that Claimant McGohan
asserted the hi-rail vehicle hydroplaned on the wet track. (Note) Track
Foreman Stewart was cutting the rail.The two men and the Foreman were
engaged in work at the time of the incident. Mr. Brown, one of the
gang members who was not hit, testified that after the incident he was
transported from the work location back to a crossing by hi-rail 6947
truck, which was involved in the incident and driven by Claimant
McGohan, and that it experienced a slide the length of some 2 or 3
poles. Thus, to that degree there was corroborated testimony that the
truck did slide on a wet track on November 30, 1985 at 11:30 AM.
Whether such, in fact, hydroplaned or represented a brake malfunction
was not demonstrated. Against that, however, there appears to have
been new hi-rail brake lines installed on the truck after the
accident.
Vehicle 6947 was tested by J. W. Pangle, Roadway Equipment
Supervisor, on November 27th in 6 simulated tests. All 6 tests
demonstrated that the vehicle could have normally stopped short of
where Mr. Stewart had been working. Thus, the Carrier concluded
that it was more probable than not that the fact that the vehicle had
struck Foreman Stewart was more the fault of the operator than that of
the machine aside from any facts to the contrary.
The Board finds that the record is suspectible to that
conclusion.
-5- Award No. 281
The Board finds that there are circumstances which serve to
mitigate Claimant McGohan's discipline despite his poor service record.
Claimant Track Welder Helper K. T. McGohan will be provisionally
reinstated to service with all rights unimpaired but without pay for
time out of service and be placed in a 12 month probationary status.
Award: Claim disposed of as per findings.
Order: Carrier is directed to make this Award effective within
thirty (30) days of date of issuance shown below.
Al
. A. Hammons, Jr. Em yee Member J7 5jh nnon, Carrier Member
Arthur T. Van Wart, Chairman
and Neutral Member
Issued October 20, 1987.
SPECIAL BOARD OF ADJUSTMENT NO. 279
Interpretation
of
Award No.281
Parties Brotherhood of Maintenance of Way Employees
to and
Dispute Union Pacific Railroad Company (Former PTPAC)
Statement (1) Carrier violated the current working agreement
of especially Rule 12, when Track Welder H. D. Pelton
Claim and Track Welder Helper J. T. McGohan were
dismissed from the service effective December 13,
1985.
(2) We are therefore requesting that Mr. Pelton and
Mr. McGohan be returned to service with all wage
loss suffered and have their record cleared of all
discipline in the charge. Also, that they have all
vacation rights restored, including seniority and
vacation restored unimpaired.
FINDINGS
The above claim was heard by this Eoard on July 13, 1987 is:
Washington, D.C. and the Claimant was present. The Board, having had the
benefit of the parties submission beforehand and on the basis of the
proper record before it, concluded that there was an insufficiency of
evidence to support Carrier's conclusion of culpability and issued an
interim bench ruling that Claimant H. D. Peltcn be reinstated to service
subject to his passing the necessary return to service examinations,
including physicals. Carrier, in compliance therewith, reinstated him
to service on July 27, 1987.
A formal Award and Order was subsecuentiy issued October 20, 1987,
therein sustaining the claim of H. D. Peltcn.
The claim before this Board requested three things:
1. Restoration to service with all wage loss suffered.
2. Record cleansed of all discipline.
3. Restoration of all vacation rights unimpaired.
Carrier responded to No. 2 by clearing Claimant's record.
It then set out to pay "all wage loss suffered". Carrier, pursuant
to past settlements, ccsnputed the straight time work opportunities which
would have fallen to Claimant had he worked fran November 27, 1985 to
July 27, 1987, i.e. 2143 hours at the rate of $12.6133 and 1376 hours at
$12.93439 (reflecting a 2.55% increase 12/1/86).
Claimant's Railroad Retirement Board "R.U.I.A." benefits were
deducted therefrom along with the required State and Federal tax
withholdings. Also, his RRB benefits were credited for tl_e period
covering DecEmber 1985 through July 1987. Claimant was then given a
sight draft in the net amount of $20,929.80.
The Manager-Personnel Accounting was advised by Carrier's Labor
Relations Department that Claimant was entitled to two lump sun payments
under the terns Article I of the Octcber 17, 1986 National Agreement of
$565 and 8450, respectively, and also a pro rata share of the third lump
sum payrent of $535. The net thereof, i.e., $342.32, $272.65, and
$363.37, respectively, was authorized for payxent January 14, 1988.
The General Chairman, under date of January 12, 1988, wrote the
Carrier's designated representative. Fe asserted, among other things,
that because the Carrier failed to pay Claimant his "wage loss" by
November 19, 1987, as ordered by Award No. 281, a 10% penalty "on the
full amount Carrier owes Claimant Pelton" was requested. The General
Chairman, apparently, defined the "full amount" when he itemized the
following:
"1. Hourly wages since November 27, 1985 (paid one
hour on the 27th) until July 18, 1987, first
day back to work. (3,471 hours not including
holidays on weekends).
All overtime during the period in number 1,
paid on jobs 7246 and 1154.
3. Luck sin payments (two).
4. Three weeks vacation due in 1987.
5. Personal days not taken per working
Agreement.
6. Months credited to his PA-6, Railroad
Retirement funds, lost during period Nov. 27,
1985 to July 28, 1987.
7. Health Benefits: Premiums to his hospital
association, Travelers Insurance and to
Aetna Insurance (dental). Mr. Peltcn paid
$1,731.00 to Travelers, was out $180.40 on
his wife's hospitalization, that normally
would have been covered; plus prescriptions
paid during period off.
On Rental Benefits, Mr. Pelton has been out
$999.00 since November, 1985.
8. Fight to Carrier purchased eye glasses.
Claimant needed new ores but could not afford
than. Carrier would have paid for two pair
during this period if he had been working.
Out of pocket expense to attend Special Board
of Adjustment of air fare $259.00 and hotel
$195.00, total $454.00."
Note: The essence of the above was presented by the Claimant to Board at
the Washington hearing, July 13, 1987 as his 'partial list'.
Chairnkan' s
Courents
No comment. No
record thereon.
No cccanent. No
record thereon.
Appears to have
been paid.
Entitled to an
adjustment
thereon.
Entitled.
Appears to have
been taken care
of.
If paid, Claimant
is entitled to be
reimbursed.
I cannot pass on
this $180,40 at
this time.
I cannot pass on
this item at this
time.
Hypothetical. If
not purchased, no
reason to raise
an incuiry
thereon.
No
entitlement.
No rei' i resent
therefor:
The General Chairman, on January 18, 1988, again wrote the Director
of Labor Relations augmenting his January 12, 1987 claim, on behalf of
Claimant, by adding:
"(1) Doctors bills & prescriptions
$ 141
.11
(2) Bills on Dependents(would have been
covered under Travelers GA-23000... $1,840.14
(3) Dental Bills (Covered by Aetna)
...
$1,067.00"
The parties subsequently conferred, discussed and exchanged
qualifying material as well as viewpoints.
The General Chairman on or about June 9, 1988, wrote the Chairman
of SBA No. 279 the following:
"REQUEST FOR INT7ERPRETATION:
The Brotherhood of Maintenance of Way Employees
respectfully petitions this Board to interpret
Award 281 so as to resolve the following:
(A) Does the Award include the four lump sun
payments as granted by the National Agreement
of October 17, 1986, for the period of time
Claimant was wrongfully withheld from service?
(B) Does the Award include the payment of
Claimant's insurance premiums and medical
expenses incurred when the Claimant was
dismissed frcm service and his employee
health benefits severed, up to the time of his
reinstatement?
(C) Does the Award allow the Claimant to receive
creditation of Railroad Retirement funds lost
between the time of his dismissal and his
reinstatement date?
Chairman's
Comments
Covers only the
period of time
out of se_rviceSections 1,3,&5
of Article 1,
have been paid.
Not payments
per se. Claimant
to be made whole
as if he never
had been wrongly
discharged. If he
wade payments for
coverage - yes.
Yes.
(D) Should the Claimant under the Award receive the
designated ten percent penalty charged to the
Carrier on the full amount due Claimant, since
the Carrier failed to pay the sum within a
reasonable time after the Award was issued?"
No. Neither rules
nor authority so
pearit.
Carrier - interposed procedural questions as to the Board's
jurisdiction to consider the subsequent varied claims filed. It also
argued, among many things, that Award No. 281 settled the dispute once
and for all, that the doctrine of res judicata, estoppel by judgment and
stare decises, bars the untimely and improper claims.
The Union
offered Awards in support of its requests.
It appears to the Chairman that there are some misunderstandings as
to the rights, responsibilities, and obligations of the parties. A
sustaining award does not provide a basis for instituting what appears
to be new claims. Nor should the Award be a basis for continuing or
creating a dispute. The Claimant and the provisions of the applicable
Agreement should be fairly considered.
out of service and entitled to all
He
is
to be treated as if never
benefits of his Agreement. The
parties Schedule Agreement provides the specific terms therefor in
Discipline Rule 12, Section 1(3), when claims are sustained, i.e.
reinstateinent, clear the employee's record and compensation for wage
loss suffered.
as here sought.
The claim that SBA 279 had properly before it, as hereinbefore
pointed out, covered the three areas specifically set forth in Rule 12_
Fxcept to the extent that the new claims may fall within the three areas
of obligatory adjustments contained in Fine 12, scene of the claims
belatedly made, by the Claimant and the General Chairman, no matter how
Its terms are not to be construed narrowly or as broad
appealing or morally righteous, appear to be outside of the claim
properly presented to Board 279. The Hoard, absent a proper record to
base its answers on, is without competence or authority to pass thereon.
A request for an interpretation of an Award should arise from a
dispute bottomed on a difference in opinions as to the proper
application of the provisions on an Award. In the instant case it is
not quite clear how this request arose. Carrier implemented the Award.
Carrier reinstated the Claimant. Also, it expunged the incident from his
service record. That part of the claim (and Rule 12)- had been
satisfied. Further, the Carrier paid a "wage loss". The record doesn't
permit comment on whether the payment was accurate or was not.
Any question as to the timeliness of the enforcement of the Award
is a matter to be mandatorily pursued under Section 3, First, (P) , of
the Railway Labor Act, as amended. This Board is without jurisdiction
thereof.
SBA 279 has enunciated through its previous awards the.application
that is to be accorded to the tern: "wane loss" in Rule 12 (e) . Based
thereon and simply stated, it means compensation for "all time lost".
That phrase does not include time otherwise not paid for by Carrier.
However, the hours lost, including overtime hours, are to be paid for at
the straight time rate less deduction for outside earnings, if any, and
Claimant has an obligation to disclose same and by whom.
Health and Welfare benefits are an integral part and cost of the
cage- factor. It is a fact that Travelers Policy CA-23000, as amended,
now does provide coverage -for suspended or dismissed employees after
adjustments who are reinstated and, as here, awarded full back pay.
Hence, if there be serious questions that then would be an
administrative matter under the Policy that Claimant has to first handle
with Traveler's and/or Aetna Insurance Companies before SBA 279 assumes
jurisdiction thereon.
Carrier has directed the Railroad Retirement Board to credit
Claimant for the period of time out of service. The presumption must be
that matter has been taken care of. Inquiry may be made to that Board
for a check thereon.
As to the lump sum wage matter: It arises under Article 1, Sections
1, 3, and 5 of the October 17, 1986 National Agreement. Carrier paid
three of them. I've not had argument from Claimant as to the
proprieties of the payments already made. However, I do understand that,
the subject matter is in National handling. Consequently, in the
interest of uniformity and consistency of Agreement application, any
alleged differences should be instituted at that level's appropriate
forum. I would defer to that jurisdiction. When appropriate guidance is
forthcoming the matter may be brought up again [here] consistent
therewith.
APMFD: As per findings, request disposed of.
Aitthur T
~f //-~.
Z/-
Issued: October 4, 1988.
t f
Mr. Arthur T. Van Wart,
Chairman and Neutral Member
Special Board of Adjustment No. 279 .
1401 Pennsylvania Ave.
Wilmington, Delaware 19806
Re: Award No. 281 - H. D. Pelton
Dear Mr. Van Wart:
The parties are in apparent disagreement as to the amount of compensation due the Claimant under Award 281. Claimant Harold D. Pelton was
wrongfully withheld from service on December 13, 1985, and fully reinstatedon October 20, 1987 through Special Board of Adjustment No. 279 Award 281.
The Award sustained the claim with the following language:
"It is found that the evidence was too insufficient
to support the conclusion of culpability on the part of
Claimant Track Welder H. D. Pelton."
The Brotherhood of Maintenance of Way Employes respectfully petitions
this Board to interpret Award 281 so as to resolve the following:
(A) Does the Award include the four lump sum payments as granted by
the National Agreement of October 17, 1986, for the period of time Claimant
was wrongfully withheld from service?
(B) Does the Award include the payment of Claimant's insurance
premiums and medical expenses incurred when the Claimant was dismissed from
service and his.employe health benefits severed, up to the time of his reinstatement?
(C) Does the Award allow the Claimant to receive creditation of -`
Railroad Retirement funds lost between the time of his dismissal and his
reinstatement date?
(D) Should the Claimant under the Award receive the designated teripercent penalty charged to the Carrier on the full amount due Claimant,
since the Carrier failed to pay the sum within a reasonable time after the
Award was issued?
r
It is the Organization's position that the above contentions, A
through D, should be answered in the affirmative. Award 281 absolved Mr.
Pelton completely from any responsibility in the incident and granted.that
all wage loss suffered be restored. Therefore, the Claimant deserved,
complete compensation for all wage loss, Railroad Retirement benefits loss-,
and all loss of health benefits, resulting from the Carrier's wrongful
termination.
The Carrier interpreted Award 281 by paying Mr. Pelton only the
straight rate of pay he would have received if he had worked during the
time of his dismissal. The Carrier also issued Mr. Pelton the compensatory
wages on December 22, 1987, or thirty-two days after the order date of
November 19, 1987. Mr. Pelton not only received the payment late for the
hourly wages, but he failed to receive any compensation for loss of health
and railroad retirement benefits. Under the claim, the Organization requested that the Claimant be fully reinstated to service with any loss in
benefits restored. By sustaining the claim, the Carrier had the obligation
of restoring the Claimant to his former position with all rights unimpaired.
Thus, the Carrier failed to completely restore Mr. Pelton to the position
he would have been in had the Carrier not charged him, by the Carrier's
failure to restore his benefits and expenses incurred from his unwarranted
discipline.
Award 281 directed the Carrier to make whole the losses Mr. Pelton
suffered as a direct result of the Carrier's unjust dismissal. Denying Mr.
Pelton lump sum payments, health and Railroad Retirement benefits, while -
paying him a month later than the order date, violated the language of
Aware 281 and violates the intent and purpose of dispute resolution through
arbitration.
- 2 -
.
We respectfully petition the Board to interpret Award 281 and direct
the Carrier to compensate the Claimant according to Items A, B, C, and D as
outlined in this letter.
Very truly yours,
o`), Gli
ra.~'b"
cc:Mr. J. J. Shannon
Director of Labor Relations
- 3