Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28078
THIRD DIVISION Docket No. MW-28436
89-3-88-3-225
The Third Division consisted of the regular members and in
addition Referee Charlotte Gold when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Denver and Rio Grande Western Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Section Foreman S. G. Nyhus for alleged failure
to follow roadmaster's instructions by not properly performing his duties
while removing shims in the vicinity of Mile Post 56.2 near west end of the
Moffat Tunnel on May 1, 1987, was arbitrary, capricious, unjust and in violation of the Agreement (S
(2) The Claimant shall be returned to service with seniority and all
other rights unimpaired, his record shall be cleared of the charge leveled
against him and he shall be compensated for all wage loss suffered in accordance with Agreeme
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.
Parties to said dispute waived right of appearance at hearing thereon.
Following an investigation held on May 19, 1987, Claimant, a Section
Foreman, was terminated from service for allegedly failing to follow his
Roadmaster's instructions while removing shims in the vicinity of the Moffat
Tunnel, leaving the track unsafe for train movement. Claimant had been told
to remove the shims, surface the track, and put the track back in normal condition. Later in the day
Form 1 Award No. 28078
Page 2 Docket No. MW-28436
89-3-88-3-225
Upon a complete review of the record, including the transcript of the
investigation, this Board finds that substantive evidence supporting Claimant's deficiency in work p
Claimant's past record and seniority, however, we believe that a penalty less
than discharge is warranted. Thus, we direct that he be reinstated as a Laborer and be given one yea
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. veer- Executive Secretary
Dated at Chicago, Illinois, this 11th day of September 1989.