NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-19819
Frederick R, Blackwell, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Louisville and Nashville Railroad Company
1zTAT7MFNT OF CLAIM; Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Ballast Regulator Operator E. L, Daulton was
without just and sufficient cause and on the basis of unproven charges (System
File 1-1/D-10705 E-306-2).
(2) Ballast Regulator Operator E.. L. Daulton be reinstated with all
rights unimpaired and that he be compensated for all wage loss suffered, all
in accordance with Rule 27(f).
OPINION Or 1:01rn: Claimant, prior to his dismissal on September. 17, 1971,
was employed by Carrier as a ballast regulator machine
operator. Following investigation conducted on August 20, 1971, he was dis
missed on the ground of gross negligence in the operation of Maintenance of
play equipment on July 21, 1971, resulting in a collision between a ballast
regulator and n tamper.
At close of work on July 21, 1971, the tamper and ballast regulator
were to be moved a distance of about five miles to tie up for the night. The
tamping machine left the work scene first, followed about five minutes later
by the ballast regulator machine. The two machines collided on practically
level ground, and a five-degree curve, resulting in damage to the tamper estimated by the Carrier at
We have carefully reviewed the transcript of the investigation conducted on August 20, 1971. Non
under the Agreement were violated, The fact that the date of July 22, 1971,
instead of July 21, 1971, was inadvertently used in the letter of charge,
which error was corrected at the beginning of the investigation, could not
properly be used to vitiate the entire proceedings. It is evident that everyone, including the claim
investigation. There wac substantial evidence in the investigation, including
claimant's own statement, in support of the charge. Discipline was warranted.
Award Number 19567 Page 2
Docket Number MW-19819
The Board is concerned, however, with the measure of discipline
imposed. Claimant had been in the service of the Carrier about twenty-one
years, and as a machine operator for about fifteen years. There is no showing that he was involved i
being a recorded suspension for leaving his assignment without securing
proper permission. In view o£ his prior record, permanent dismissal was
unwarranted. We will award that he be restored to the service with seniority
and other rights unimpaired, but without pay for time lost while out of service.
FINDINGS: The 7hird Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the. parties waived oral hearing;
That the Carrier .and the Employes involved in this dispute are
respectively Carrier and Employes within the meaning of the Railway Labor Act,
as approved June 27. la3i;
That this Division of the Adjustment Board has jurisdiction over the
dispute involv.=.d herei,^.; and
That the discipline imposed was excessive.
A W A R D
Claim sustained to the extent indicated in Opinion and Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 30th day of January 1973.
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