(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
"(1) The five (5) days of suspension imposed upon Foreman E. H. Sams for alleged violation of 'Rule 1119' on January 26, 1981, was arbitrary, capricious, unwarranted and on the basis of unproven and disproven charges (System File C-4(13)-EH3/12-39(81-33) G).
(2) The Claimant's record be cleared of the charge leveled against him and he shall be compensated for all wage loss suffered including wage loss suffered attending the hearing held on February 23, 1981.°
OPINION OF BOARD: Claimant, Foreman E. H. Sams, was assigned on January 26,
 1981, to strip mud from tracks and surface the track at several locations between Ridgeland and Hardeeville, South Carolina.
At about 2:40 p.m. on January 24, 1981, the Roadmaster observed that Sams' section force had tracks jacked without the benefit of a line-up, block-up, conditional stop order, or flag protection. As a result, Claimant was charged as follows:






                    Docket Number Mw-24782


A hearing into the matter was held on February 12, 1981. Claimant was found guilty and assessed a five-day suspension. The transcript of that hearing has been made a part of the record of this case. A review of the transcript reveals that Claimant received a full and fair hearing and that, by his own admission, he did have a jack under the track in violation of Rule 1119. This Board, however, thinks that a loss of five days' pay is far more severe a penalty than is required to make Carrier's point in this case.
Claimant is fully aware of the Rules and was persuaded that since he had only one jack under the rail and since he could see for miles in both directions, he could quickly pull the jack from under the rail with no obstruction to train traffic. While this Board does not condone even technical violations of safety rules, we must conclude that a letter of reprimand would have been a more appropriate penalty based on the total record of this case.
        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
        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: ~, i ~! t-'J
        Nancy ver - Executive Secretary


        Dated at Chicago, Illinois this 28th day of February 1985 f%

                                                      v


CARRIER MEMBERS' DISSENT

TO

AWARD 25273, DOCKET N0. Md-24782

(Referee Dennis)


We feel the Majority was in error in reducing the mild discipline in this case. The Division fou based on Claimant's own admission. This, coupled with a record of previous offenses, clearly supported the five day suspension assessed. Claimant, as a foreman, knew or should have known, the risks involved in his action.

 Safety rules of this nature directly related to train movement are designed to protect train cre public. This decision sends an unfortunate signal to the majority of those making a genuine effort to comply with a safety program and to those responsible for its enforcement.

        We dissent.


                            a

                            T. F. Strunck


                            W. F. uker


                            Af74r

                            M. W. FYngefut


                              V. Varga


                          ?-E-. Yost