NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25835
David P. Twomey, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Trackman C. Harris for alleged violation of
'Rules of Conduct I and K' was without just and sufficient cause (System File
NEC-BMWE-SD-524D).
(2) The claimant shall be reinstated with seniority and all other
rights unimpaired, his record cleared of the charges leveled against him and he
shall be compensated for all wage loss suffered."
OPINION OF BOARD: The Claimant, Mr. C. E. Harris, entered the service of the
Carrier as a Towerman on July 11, 1977. Mr. Harris was
notified by letter dated September 28, 1982 to appear for a trial in connection
with the following charge:
"Violation of the applicable portions of Amtrak's
General Rules of Conduct I and K which read in part:
Rule 'I' 'Employees shall not be retained in the
service who are insubordinate..'. Rule 'K' Employees
must report for duty at the designated time and place,
attend to their duties during the hours prescribed
and comply with instructions from their supervisor.'
In that on 9/16/82 at approximately 9:00 A. M. in the
vicinity of MP 55.3 you were instructed by your Foreman
T. Reddice to align temporary rails and you failed
to follow these instructions."
After two postponements, the trial was held on November 3, 1982.
Following the trial, a Notice of Discipline dated November 12, 1982 was sent to
Mr. Harris informing him that as a result of the evidence adduced at the trial
he had been found guilty and was assessed discipline of dismissal in all
capacities.
We find that the testimony of record of Track Foreman Reddice and
Track Foreman Getta constituted substantial evidence of record that Mr. Harris
failed to comply with instructions from Track Foreman Reddice to align temporary
rails on September 16, 1982 and that such was a violation of Rules "I" and "K"
of the Carrier's Rules of Conduct. It was entirely proper for the Carrier
Award Number 25708 Page 2
Docket Number MW-25835
to consider the past discipline imposed on Mr. Harris, as such related to the
conditional reinstatement Letter of Agreement dated August 2, 1982, in making a
determination on the measure of discipline to impose for the proven offense.
We find that the discipline of dismissal in this case was neither arbitrary,
capricious nor excessive.
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 Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy . Dever - Executive Secretary
Dated at Chicago, Illinois, this 14th day of November 1985.
ICE/1,,
v, 4.
e 0
0 ; ~it~