AWARDS 58 - YARDMASTERS CANNOT BE HELD RESPONSIBLE FOR WHAT DID NOT KNOW

Fourth Division Award No. 4324 (Miller) 

"The Carrier has not established that Mr. McCormick ever saw the special instruction of December 6, 1982. The Carrier has not refuted these points:

"1. Mr. McCormick was working as a Oakley Yardmaster on the date the special instruction was issued.

"2. The Carrier Officer who qualified Mr. McCormick as a Hump Yardmaster did not inform Mr. McCormick about the special instruction.

"3. At the time of this incident, there was a filing system, posting procedure or sign sheet to assure that all Hump Yardmasters knew of current special instructions.

"As its fallback position, the Carrier contends that even if Mr. McCormick did not see the special instruction, he had knowledge of its substance through the workplace practice derived from the special instruction. This contention is not supported with substancial (sic) evidence. In Q/A 101, Mr. McCormick stated that he did not take exception to Yardmaster Duckworth's statement concerning the practice of notifying the Car Foreman about contaminated wheels. The practice identified by Mr. Duckworth at Q/A 91 does not support the Carrier's contention.

"`Q91 - Has it been a practice that the Tower Train master on every shift has always taken care of this particular duty and the yardmaster has never done this job?

"`A91 - I can only speak for my tour of duty and say that at no time did I ever give the Car Supervisor or Car Foreman any instructions concerning contaminated cars because it was always done by the Asst. Terminal Train master.'

"The Carrier has not convincingly established the existence of a controlling practice that would indicate that Mr. McCormick knew of the substance of the special instruction.

"Overhead suspension in this case cannot be upheld. The Carrier has not shown that Mr. McCormick had direct or indirect knowledge of the special instruction. Mr. McCormick cannot be held responsible for that which he did not know."