(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Foreman D. L. Phillips for alleged responsibility in connection with a dera February 10, 1983 was without just and sufficient cause and unwarranted (Carrier's File 013.31-271).

 (2) The claimant shall be reinstated with seniority and all other rights unimpaired and he shall be compensated for all wage loss suffered.

 OPINION OF BOARD: Claimant was hired as an Apprentice Section Foreman on
 March 16, 1970. Thereafter he worked in the Carrier's
 Maintenance of Way Department in the capacities of Apprentice Section Foreman,
 Extra Gang Foreman, Section Foreman, and Roadmaster during the next thirteen
 years until he was discharged on May 7, 1983. He was familiar with rules,
 regulations and requirements of the Carrier regarding the work of a Section
 Foreman and was experienced in the duties of that job.

 Claimant had been instructed by his Roadmaster to raise the road crossing which traverses a curve on the main line track near Mile Post 205.2. The physical characteristics of this area were well known to the Claimant because he had been regularly assigned as Foreman on this section for the past seven years and had worked in the section even before that time. About 12:05 p.m., February 10, 1983, while work was being performed to accomplish the crossing assignment by Section Gang forces under Claimant's charge, a northbound train approached fo track. The train proceeded through the area without any speed restrictions. While moving over the work area at the normal authorized speed, two cars became derailed at the point where the maintenance work was being performed.

 An investigation was conducted to ascertain the facts and determine Claimant's responsibility in connection with the derailment of the two cars. Based on the transcript of the investigation, the Carrier determined that Claimant was responsible and he was dismissed.

 Claimant received a fair and impartial hearing. Furthermore, the investigation revealed substantial and credible evidence that the derailment occurred as a direct result of Claimant's increasing the elevation of the high rail in the curve contrary to Rule 584 of the Maintenance of Way Rules and Regulations and failing to place a slow order on the concerned track as required by the rules. Accordingly, there is no question that the Carrier had cause to discipline Claimant.
                  Docket Number MW-25645


There is a question whether the discharge penalty for Claimant's negligence was excessive. Claimant had been employed by the Carrier for over thirteen years. The Carrier relies, in part, on Claimant's past discipline record to support discharge. In particular, the Carrier relies on an earlier dismissal because Claimant "failed to line main line switch". That incident occurred about nine months after Claimant was hired as an Apprentice Foreman; he was returned to service in February, 1971 after two months. In 1971, he was also reprimanded four times, primarily for "failure to make proper work reports." In the next 11 years Claimant received only one discipline, a reprimand for "failure to proper (sic) instruct men on his district." This last reprimand occurred eight years before the subject derailment incident. It may well be that the discipline summarized above does not constitute an outstanding record. On the other hand,, it does not particularly legitimize or make reasonable discharge of a long-term Employe for the first-reported instance of serious negligence in over twelve years.

 The type of negligence committed by the Claimant is extremely serious. Fortunately the derailed cars were observed and the train was brought to a stop rather quickly. Undoubtedly the Carrier is correct in stating "this situation could have developed into a catastrophe because a required speed restriction had not been issued by the Claimant ...." As already indicated, the Carrier could reasonably conclude that Claimant had exercised poor judgment in not issuing the slow order. Having personnel recognize and comply with the rules is extremely important and justifies use of very significant discipline for violation. However, under the circumstances of this case, the dis modified. A suspension of over two years is certainly adequate to emphasize to Claimant, as well as others, the critical need to obey the rules and regulations. Therefore, the Board directs the reinstatement of Claimant without pay for time lost, but with seniority and other rights unimpaired.

        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:00.E.Nancy J.o4VsVF - Executive Secretary

 Dated at Chicago, Illinois, this 28th day of October 1985.