NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-24880
Robert Silagi, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The discipline ("10 days deferred suspension and disqualified as
machine Operator for a period of one year") imposed upon Machine Operator G.
Anderson was without just and sufficient cause (System Docket 680).
(2) The claimant's record shall be cleared and he shall be compensated
for all wage loss suffered.
OPINION OF BOARD: Claimant entered Carrier's service in April, 1978 as a
Trackman and was awarded the position of Machine Operator
two years later. On May 13, 1980, an incident occurred which resulted in the
following charge against the claimant.
"The alleged destruction of Conrail derail pipes on Jamesburg
Branch with Scafier NVR 1509 on May 13, 1980 at approximately
1:00 P M which resulted in inability to throw any switches
on Jamesburg Branch."
Following the hearing on the charge claimant was assessed discipline
of ten days suspension and was also disqualified as a machine Operator for one
year. Shortly thereafter the suspension portion of the discipline was reduced
to ten days deferred suspension but the disqualification remained unchanged.
The Brotherhood raised various objections and defenses which will be
dealt with below.
1. Claimant was not charged with a specific violation of any operating
or safety rule.
An analysis of the charge discloses that it meets the tests established
by this Board, namely to "reasonably apprise (s) the employe of the set of facts
or circumstances under inquiry to provide an opportunity to prepare a defense
and prevent surprises
..."
(Award 12255 - Seff).
2. Claimant alleges that he was unaware that his machine had damaged
the pipes; that he did not know the location or presence of the pipes; and that
he was not told by his supervisor of potential damage to the pipes.
and unwarranted.
Award Number 24602
Docket Number MW-24880
Page 2
The transcript of the hearing clearly shows that the Carrier
acted upon credible testimony which rebutted claimant's allegations. We therefore
see no reason to reverse the finding that the destruction of the pipes was the
direct result of claimant's negligence.
3. The discipline assessed against claimant was excessive, capricious,
It is undisputed that extensive damage was caused to Carrier's
property which in turn delayed a train crew. This was due to the improper
operation of the Scarifier by claimant. The disicpline imposed consisted of a
suspension which, however, was deferred, and disqualification as a machine
operator for one year from July 15, 1980, a period of time long past. It can
be reasonably assumed that in the absence of any fresh charges against him,
claimant was restored to his former position of machine operator two years ago.
Under all the circumstances we hold that the discipline was commensurate with
the offense and was not arbitrary, capricious or excessive. The claim is,
therefore, denied.
FINDINGS: The Third 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 Employe 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; and
That the Agreement was not violated.
A W A R D
Claim is denied.
N cl--J. Dever - Executive Secretary
NATIONAL RAILROAD ADJUSTMENT HOARD
By Order of Third Division
Dated at Chicago, Illinois this 15th day of December 1983.
