(Brotherhood of Maintenance of Way Employes PARTIES TD D75PV1~:

STATEMENT OF CLAIhI: "Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Apprentice Foreman V. D. Thompson for alleged improper protection of contractor's equipment was without ,just sad sufficient cause end wholly disproportionate to such a charge (Carrier's File 12-39 (80-7) H).

 (2) Apprentice Foreman Thompson shall be reinstated with seniority and all other rights unimpaired and shall be compensated for all wage loss suffered."

 OPINION OF BOARD: On October 5, 1979, the Claimant was directed to attend a
 hearing in connection with his alleged improper protection of the contractor's equipment which was working on the main track of the Wilmington subdivision in milepost S8 339·8 on Friday, September 28, 1979. Further, as part of this notice he was charged with violating portions of rye 99 and 754 of the Carrier's operating rules effective December 4, 1978. Rule 754 and Rule 99 are both very long rules and somewhat complicated, however, their meaning and importance are qui 754 states that all on-track equipment mast be afforded flag protection in both directions in accordance with Rule 99 unless moving under the authority of a written line-up. Rule 99 details how that flag protection mast be provided.

 Certain facts are not is dispute. On the date in question, the Claimant was assigned to protect the movement of a lime injector truck which was working on the Carrier's right-of-way. The Claimant was assigned to protect the truck from train undisputed that at approximately 4:45 p.m, a work train designated as Work Extra 949 whirl: had been unloading company material while~moving is an eastward direction came up upon th The transcript makes clear that the Work Extra came upon the lime injector truck as a result of no flag protection being provided.

 In reviewing the transcript, it is the Board's conclusion that there is substantial evidence to support the Carrier's finding of guilt. The transcript contains testimony of witnesses as well as implicit and explicit admissions by the Claimant that he failed to fulfill his responsibilities under Rule 99 and 754. Evidence is clear that the line-up provided the Claimant expired at 2:00 p.m. and that between < 2:00 and 2:30 P.m- the Claimant left his designated flagging position to obtain a new line-up. 3e made certain unwarranted assumptions re the position of the Work Extra that were not listed on the line-up. Regarding Rule 99, it is clear that the Claimant aid
 Award Number 23951
 Docket Number W-24100

 Page 2

 not flag the Work tetra and that he was not physically is a position to do so. Nor did he put out tarped.os as required by the Rules.

 The Carrier argues that the offense is extremely serious as the Claimant's negligence could have easily led to an accident with serious injury to employee and/or equipment. The Organization argues, assuming arguendo that the Claimant is guilty, that permanent dismissal is excessive., capricious and unwarranted. In reviewing the past record of the Claimant., we note that he has approximately nine years seniority., free of any disciplinary suspensions. We also agree with the Carrier that the offense is serious and that such negligence should not be tolerated by employees aspiring to hold positions of responsibility,, such as foreman, as was the Claimant. However., we are not convinced that the charge justifies total and permanent sevcrence of the Claimant's employment relationship with the Company is all capacities. Therefore, we direct that the Claimant be reinstated without back pay to the position of Traclenaa without Apprentice Foremen rights.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence..-finds and hods:


That the parties waived oral hearing;

 That the Carrier and the Employee involved in this dispute are respectively Carrier and 7nployes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; end

 That the discipline was excessive.

 A W A R D
Claim sustained is accordance with the opinion.

 NATIONAL RAILROAD ADJUST BOARD
 By Order of Third Division

 ATTEST: Acting Executive Secretary
 National Railroad Adjustment Board

 CE I VED
By ~ rue 17 ~~.~?
 osemaria Breech - Administrative Assistant _zh,
 °°9o Office ~ g

 Dated at Chicago Illinois, this 14th day of July 1982.