Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29025
THIRD DIVISION Docket No. SG-29212
91-3-90-3-80
The Third Division consisted of the regular members and in
addition Referee James E. Mason when award was rendered.

(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Soo Line Railroad Company



Claim on behalf of D. J. Mandeik and J. W. Christoph, for payment of all time and benefits lost when the Carrier violated the current Signalmen's Agreement, as amended, particularly, the Discipline Rule." Carrier file 900-16-A-63.

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.



This case involves two career Signal Department employees, who became involved in a situation which resulted in their being suspended from service without pay for six calendar months extending from February 22, 1988, to August 22, 1988.

The basic facts of record are clear and uncontroverted. Each Claimant had more than thirty years the former Soo Line property. When Soo Line and former Milwaukee Road territories were merged and th were required, in an exercise of their combined seniority, to displace onto Signal Testman positions on the former Milwaukee territory. Their displacement notices were dated Oc (Mandeik). Each Claimant, at the time of the displacement, requested instructions, literature, assis they had exercised their seniority.
Form 1 Award No. 29025
Page 2 Docket No. SG-29212
91-3-90-3-80

The record is clear that Claimants were not fully qualified for the Testman positions in question. They were being tutored by another Testman and by the Signal Foreman. During the training period immediately following their displacement on the Testman positions, the Signal Foreman described their work habits as "Excellent and reliable."

On February 22, 1988, the two Claimants were working together and without any overseer or tutor. The Signal Foreman was on vacation and in his absence he had instructed the Claimants to continue to do test work "in areas that they felt they were familiar." During the tour of duty on February 22, 1988, Claimants were in the act of testing circuits at Portage, Wisconsin, when they mistakenly threw a switch under a train which was moving through the plant causing a derailment with resulting damages of approximately $160,000.00.

At the Hearing held on March 2, 1988, the Claimants were present and ably represented. During their testimony, each Claimant acknowledged that they clearly understood the Foreman's instructions to only test "whatever we thought we were safe in doing" (Ctiristoph) and "I was told to do what I thought I could do comfortably" (Mandeik). They both acknowledged during their testimony that their actions of testing relays while a train was moving through the plant was the primary cause for the derailment. They also acknowledged that they were no they were working at the time of the derailment.

The Organization argues that Carrier must accept most of the responsibility in this situation in adequately trained and, in fact, had taken initiatives AFTER the derailment to acknowledge that "we need additional training," and to provide such additional training to the Claimants. The Organization further contends that, in view of Claimants' clear record for more than thirty years, a six month suspension is excessive discipline.

Carrier argues that because of the more than thirty years of service of the Claimants and because of the instructions which had been issued by the Foreman, these experienced signal employees should not have attempted such a test as they did when they were not fully familiar with the circuitry and especially with a train moving through the plant. Carrier continues that they did, in fact, consider the Claimants' otherwise good record when they determined the degree of disci
The responsibility of the Board in reviewing discipline cases has been clearly set forth by a long line of arbitral decisions. We do not substitute our judgment for t discipline for a proven violation unless we are convinced that the fact situation in a particular ca is so excessive as to constitute an abuse of the Carrier's inherent right to assess discipline. In this case, we are convinced that a six calendar month suspension is excessive. To be sure, the Claimants should have known what they were doing before taking the action which they took. If they did not know what they were doing or if, as testified, they were not comfortable with the actions being taken, they should have either sought assistance or stopped the testing, especially since, from the record, we are not convinced that they had the Operator's clearance to make such tests.
Form 1 Award No. 29025
Page 3 Docket No. SG-29212
91-3-90-3-80

However, the Carrier must share in the responsibility because they permitted these less than fully trained employees to be in the position they were in on the date in question. Carrier's representative acknowledged that
... it takes many years to become a testman .··. Carrier's culpability cannot be denied.or overlooked. Therefore, it is our determination, based upon the fact situation which exists in this case record, that a thirty working day suspension would employees that they must be sure of the consequences of their actions before they act.

The discipline as assessed is to be reduced from six calendar months
to thirty working days. Ar other earnings or compensation which Claimants
received during the original out-of-service period must be considered to off
set whatever compensation. is due under this Award.








Attest:
      Nancy J. e r - Executive Secretary


Dated at Chicago, Illinois, this 28th day of October 1991.