NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-24528
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation (formerly The New York,
( New Haven & Hartford Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The disciplinary demotion of Carpenter Foreman W. Robson, his
disqualification as carpenter foreman and the suspension of thirty (30) days
imposed upon him was excessive and unwarranted (System Docket No. NH-51).
(2) Mr. W. Robson's seniority as carpenter foreman be restored and
unimpaired, he shall be paid for all time lost and be allowed the difference between
what he would have received at the carpenter foreman's rate and what he was paid in
a lower rated position beginning with the effective date of his suspension and
continuing until he is returned to work as a carpenter foreman with seniority as
such unimpaired."
OPINION OF BOARD: The Claimant, an employe of thirteen years (13) service, was
engaged with his crew of four carpenters and a truck driver in
assisting the track department in handling bridge ties at Darien, Connecticut. The
crane being used was cleared to operate on Track 2 but was swinging loads of ties
to the outside of Track 4, "fouling" it with each load. Neither the Track Foreman,
in charge of the crane crew, nor the Claimant had obtained permission from the
Block operator or the Train Dispatcher to obstruct Track 4. This was contrary to
Rule 101 which reads:
"Trains must be fully protected against any known condition not
covered by the rules which interferes with their safe movement at
normal speed. Any work on or adjacent to a track which may create
a condition interfering with the safe movement of trains at normal
speed, or the use of equipment which may foul adjacent tracks, must
not be attempted without permission of the Train Dispatcher. Protection
against trains in both directions must be provided before the track is
obstructed and trains approaching the obstruction must be notified by
train order or bulletin order. Engine whistle or horn must not be used
to recall members of crew providing such protection."
As a train approached, the crane stalled with a load obstructing Track
4. The train collided with the load at 70 MPH causing considerable damage to the
locomotive, passenger cars and the crane. Additionally several members of the train
crew and some passengers were injured.
After notice and a hearing the Claimant was found in violation of Carrier
Rule 101, Conrail Rules for Conducting Transportation, CT-400. He was assessed
the penalty of "Thirty (30) days suspension without pay and disqualification as
Carpenter Foreman."
Award Number 24722 Page 2
Docket Number MW-24528
The Organization alleges: that the Carrier presented no evidence that the
Claimant was responsible; that they avoided testimony favorable to the Claimant by
not calling Track Foreman Kalinowski to testify; and that even if, arguendo, the
Claimant had exercised poor judgment the disciplinary penalty was excessive,
capricious, improper and unwarranted.
As to the Claimant's responsibility in this mishap, although he was one
of two foremen involved in the work, he cannot escape his obligation under Rule
101 by virtue of the lack of direct control over the equipment being used. The
preponderance of testimony indicates that he was negligent in not seeking the
protection which is required under the rule and the negligence of the other foreman
does not relieve nor mitigate his own.
With respect to the testimony of Track Foreman Kalinowski, he was present
at the hearing and had the Claimant or his representative desired his testimony, he
was at their disposal. Having failed to exercise the option afforded them the
Organization
cannot fault
the Carrier for their lack of action. When asked at the
close of the hearing: "Mr. Campbell: Mr. Robson or Mr. Garibaldi, are there any
witnesses which you care to question on your behalf?" The answer was, "Mr.
Garibaldi: No." (Transcript p. 56).
Regarding the penalty, when the seriousness of the -occurrance is considered,
the thirty (30) day suspension is a mild disciplinary penalty indeed. The Claimant's
demotion is also warranted but it should not be perpetuated ad infinitum.
Accordingly, the Board will restore the Claimant without
compensation to
his former
position of Carpenter Foreman with his seniority rights intact.
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 Employes 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 discipline was excessive.
A W A R D
Claim sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
10 Nancy . D96ver - Executive Secretary
Dated at Chicago, Il7linois, this 30th day of March, 1984.