Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27794
THIRD DIVISION Docket No. TD-27728
89-3-87-3-490
The Third Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.

(American Train Dispatchers Association PARTIES TO DISPUTE:
(Norfolk and Western Railway Company STATEMENT OF CLAIM:

"I request that Mr. L. C. Geissman be returned immediately to service as Train Dispatcher in Brewster, Ohio and that he be compensated at dispatchers rate for all time lo ...."

FINDINGS:

The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.



As of November, 1986, Claimant had been an employee of Carrier for some 33 years, 19 of those as a Train Dispatcher. On November 14, 1986, he was telephoned at home after duty hours and suspended from service pending investigation into an inciden Following the hearing and investigation, Carrier dismissed Claimant from service.



issued track occupancy authority to a Maintenance Department employee to operate a brush cutter between MP 37 and the east end of Green Creek siding, until 10:00 A.M. He had applied appropriate electronic blocking to protect the brush cutter. But at approximately 9:28 A.M., when another on-track vehicle reported clear of th devices but also those protecting the brush cutter, leaving the latter unprotected for about 32 minu
At the investigation held on November 25, 1986, the facts underlying the incident were developed through the following questions and answers by the Chief Train Dispatcher and Claimant:
Form 1 Award No. 27794
Page 2 Docket No. TD-27728
89-3-87-3-490
"81. Q. In your preliminary of this investigation of this
matter that you evidently have made, is there
anything that you could offer as an explanation as
to why the incident occurred?
A. Well from looking at this exhibit A, when we was
talking about, the only way that I can see that Mr.
Geissman possibly could have removed the blocks was
when he cleared up Mr. Hartley between the east end
of Clyde and the East End of Green Creek and taken
the blocks down at the same time between the switches
at Green Creek on his controls. You know on the
control stand, you've got assigned control station,
3 digit numbers and I believe Green Creek is 135,
if you would call up 135 station and unblock Exit
2 east and west, you'd remove the ones at Clyde
and also the ones between the switches.
82. Q. By inadvertendently [sic] manuvering [sic] those
two blocking devices?
A. Yeah, just using the-on our board we don't have
the little blocking devices.
83. Q. It's electronically blocked?
A. Right."
"132. Q. Mr. Geissman, did you remove any portion of Mr.
Minadeo's protective blocking prior to his reporting
in the clear?
A. Apparently I did remove the block between the west
and east end of Green Creek when I removed Mr.
Hartley's blocks at the east end of Clyde to the east
end of Green Creek. That's the only explaination
[sic] I have for the removal of that block."


of "...failure to provide proper blocking for brush cutter . . and also your
failure to report this incident on the train sheet, ..." (emphasis aUed).
Carrier dismissed the Claimant from service effective December 5, 1986, and
the Organization perfected the present claim seeking his reinstatement and
backpay. Attempts to resolve the claim were not successful, but the Carrier,
on its own initiative issued a letter dated March 19, 1987, restoring Claimant
to service without pay for time lost and without prejudice to the position of
either party. Claimant returned to duty March 31, 1987. The claim before the
Board seeks pay for time lost during the period of November 15, 1986 - March
30, 1987.

There is no question that Claimant made a serious error by inadvertently removing the blocking p was injured but this mistake might have had disastrous consequences. Claimant cannot be absolved from all responsibility for his mistake.
Form 1 Award No. 27794
Page 3 Docket No. TD-27728
89-3-87-3-490

It is difficult, however, to justify Carrier's finding Claimant guilty of the separate offense, and presumably increasing the quantum of discipline, for "failure to report the incident on the train sheet." Nothing in this record supports a conclusion that Claimant was aware of his error, failed knowingly or willfully to correct it, or tried to cover it up. When confronted with the facts he freely admitted making a mistake, apparently the first cause for discipline in his 33 years of service to this Carrier.

In the circumstances, we find the discipline excessive. We shall reduce the penalty and direct Carrier to compensate Claimant for time lost from February 15, 1987 forward to date of reinstatement to service. _See Third Division Awards 23842, 26514, and 27136.



        Claim sustained in accordance with the Findings.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest. fG/
Nancy J. ev - Executive Secretary

Dated at Chicago, Illinois, this 29th day of March 1989.