Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28508
THIRD DIVISION Docket No. MW-28567
90-3-88-3-405
The Third Division consisted of the regular members and in
addition Referee M. David Vaughn when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Welder Foreman R. C. Gayton for alleged
'...
responsibility for accident which occurred at about 10:15 a.m., January 21,
1988
....'
was arbitrary, capricious, exceedingly harsh and in violation of the
Agreement (System File DJ-4-88/UM-12-88).
(2) The Claimant shall be reinstated to service with seniority and
benefits unimpaired, his record cleared of the charges leveled against him and
he shall be compensated for all' wage loss suffered."
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.
The Claimant was employed as a Welder Foreman. He had 29 years of
service and, prior to his discharge, had no demerits on his record.
On January 21, 1988, Claimant was driving a Hi-Rail truck which was
loaded with welding equipment being used to weld switch frogs. He was responsible for the safety of
being driven on the Eastbound Main track. That track was occupied by Extra
667 East, whose rights were superior to those of the Hi-Rail truck. Claimant
had been advised that Extra 667 East was scheduled; indeed, he had received
and signed for a copy of the lineup. He acknowledged that he read the lineup
and read it back. Notwithstanding Claimant's knowledge of the scheduled
arrival of Extra 667 East on the track, he left the truck on the track, and it
was struck by the train. The truck was damaged in the amount of $12,000. No
injuries were sustained. The train was not damaged. Claimant was unable to
explain why he had not taken proper precautions to keep clear of the scheduled
train.
Form 1 Award No. 28508
Page 2 Docket No. MW-28567
90-3-88-3-405
Claimant was ordered to attend a Hearing
"...
relative to the charge
that you were allegedly responsible for the accident which occurred at about
10:15 a.m., January 21, 1988, involving a collision between Extra 667 East and
Truck 431 at Walker at the Illinois River Line switch." Based on the Investigation, the Carrier dism
At the Hearing, the Organization objected that the charge against
Claimant was vague, since it did not include a description of the way or ways
in which Claimant was allegedly responsible for the accident. The Organization also objected to the
other employees had been allowed to waive Hearing and accept demerits for
similar accidents.
Subsequent to the dismissal, the Carrier offered Claimant a leniency
reinstatement, but without any backpay. Claimant declined. A second offer of
reinstatement as a Welder was made on June 8, 1988, without prejudice to the
Organization's Claim for backpay and Foreman seniority. Again, Claimant
declined the offer.
The Carrier argues that the Organization and Claimant were well aware
of the nature of the charges against him and were not prejudiced in preparing
their defense. The Carrier argues that Claimant acknowledged responsibility
for the dereliction and points out that it was an extremely serious, and unexplained, violation for
Carrier urges that the Claim be denied. The Carrier urges, in any event, that
its unconditional offer to reinstate Claimant in June, 1988, relieved it from
further liability for wages Claimant could have earned as a Welder, even if
Claimant were reinstated.
The Organization argues that the charges against Claimant were
defective because he was not notified in writing of the precise charges, as
required by Rule 57(a), there being numerous ways in which Claimant could be
responsible for the accident. The Organization also argues that the Carrier
impermissibly appended to the record and relied on maps, letters and other
documents which were not entered into the record, thereby depriving Claimant
of a fair Hearing. The Organization points out that other employees involved
in similar incidents have been allowed to waive Hearing and accept demerit
marks; and it urges, therefore, that dismissal was an arbitrary, capricious,
and abusive penalty, particularly in light of Claimant's long service and
clean record. The Organization asserts that the Carrier's offer of reinstatement indicates recogniti
that the Claim be sustained and Claimant reinstated with all rights and
benefits unimpaired and he should be compensated for all wage loss suffered.
Charges against an employee must be sufficiently specific to allow
the employee and organization to prepare a defense against the charges. The
Board is persuaded that the charge against Claimant was sufficiently specific;
the failure to specify, in advance of the Hearing, the manner, if any, in
which Claimant might have been negligent was unnecessary and premature. Indeed, gathering informatio
purposes of the Hearing.
Form 1 Award No. 28508
Page 3 Docket No. MW-28567
90-3-88-3-405
Concerning the Organization's argument that the discipline must be
overturned because the Carrier included in the record and relied on documents
not introduced at the Hearing, the Board is not persuaded. Claimant readily
admitted that he was responsible for the accident; it was his own statements
on which the Carrier relied. If the Carrier's inclusion in the record of additional documentation wa
prejudiced thereby.
The Carrier's 1981 Notice which established the demerit system on the
property contained an exception for "[m]ajor offenses such as
...
inexcusable
violation of rules resulting in endangering or destroying company property
...
[which] may subject the offender to dismissal, regardless of demerits." This
was, clearly, such a case. The Carrier is, of course, obligated to mete out
discipline to similarly-situated employees for similar offenses in an evenhanded way. There is, howe
instant case to persuade the Board that other employees committed equallyflagrant violations or caus
insufficient to require overturning the discipline.
The Board is persuaded that the offense constituted a serious breach
of Claimant's responsibilities as an employee and, in particular, of his responsibilities as a Forem
of Claimant's 29 years of service and his demerit-free record since 1983 that
the penalty of dismissal was excessive and that he deserves reinstatement to
service and a second chance.
The Board is not, however, persuaded that Claimant should receive
back wages upon his return to work, in the first instance because of the
seriousness of Claimant's offense and, after the Carrier's unconditional offer
of reinstatement in June, 1988, for the additional reason that its liability
thereafter was reduced by the amount Claimant would have earned as a Welder
had he accepted the offer and thereafter pursued his Claim. _See Third Division Awards 23559, 22034
The Board deems it otherwise appropriate to reinstate Claimant on the
terms offered unconditionally by the Carrier at the earlier date, that is:
restoration to service as a Welder and restoration of Claimant's Welder Foreman seniority, but witho
A W A R D
Claim sustained in accordance with the Findings.
Form 1 Award No. 28508
Page 4 Docket No. MW-28567
90-3-88-3-405
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. S
yCk
- Executive Secretary
Dated at Chicago, Illinois, this 7th day of August 1990.