C:\MYDOCU~1\SCHEDU~2\3-29343.htm

Form 1 :;ATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29343 THIRD DIVISION Docket No. SG-29507 92-3-90-3-444 The Third Division consisted of the regular members and in addition Referee Dana E. Eischen when award was rendered. (Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:

(CSX Transportation, Inc. (former Baltimore & Ohio

Railroad Company)

STATEMENT OF CLAIM: Claim on behalf the General Committee of the Brotherhood

Railroad Signalmen on the CS XT (B&0 Railroad):

Claim on behalf of T.C. Reeder, for rescission of discipline assessed him and payment of _,zirty (30) days pay at his pro-rata rate of pay, account of Carrier violated :he current Signalmen's Agreement, as amended, particularly, Rule 50, 51, 52 and suspension and did :ot find him guilty as charged." Carrier file 15 (89-58). BRS file Case No. 3060-CSXT.B&O. 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.

This case involves Carrier's imposition of a thirty day suspension of the Claimant following Investigation on June 22, 1989, for failure to perform required tests on his territory in accordance with both Federal Railroad Administration (F.R.A.) regulations and CSX Transportation Rules and Instructions 1.203 and 1.210 wh During June 1989, when an F.R.A. inspector randomly reviewed the Carrier's signal test reports, the Carrier was charged with four Code 1 violations on District No. 5 performed by the Carrier during the first quarter of 1989. As a result, the Carrier's Signal Supervisor, who had responsibility for that particular district, reviewed the various first quarter reports of Claimant, the Signal Maintainer for that district. Form 1 Award No. 29343 Page 2 Docket No. SG-29507 92-3-90-3-444 On January 2, 1989, Claimant began working as the signal maintainer with maintenance responsibility for the assigned territory on District No. 5 at Sidney, Ohio. Claimant's territory required 37 ground tests, 35 shunt fouling circuit tests and 35 switch circuit controller tests be made each quarter; however, according to the Carrier, during the first quarter the Claimant made none of the 107 required tests. Further, the Carrier submits that 21 switch obstruction tests were required on the Claimant's territory each month, and that during the same first quarter period, Claimant had completed only 36 of the 63 total such tests required by the F.R.A. The Claimant was charged with failure to make tests in accordance with F. R. A. regulations and Carrier Rules which resulted in the four Code 1 violations by the Carrier. An Investigation was held on June 22, 1989, at Deshler, Ohio, following which Carrier found Clai a restriction to positions working under the direction of a Leading Signalman or Foreman was consequently imposed. The Carrier notes Rules 50 and 51, the controlling discipline/appeal Rules, quoted below:

RULE 50 - DISCIPLINE-INITIAL HEARING

(a) An eaployee who has been in the service more

than thirty (30) days will not be disciplined or

dismissed without a fair and impartial hearing, at

which hearing he may be assisted by one or more duly

accredited representatives. Suspension in proper

cases pending a hearing, which shall be prompt, shall

be deemed a violation of this rule. The employee

will be advised in writing at least forty-eight (48)

hours prior to such hearing of the exact charge or

charges made against him. At such hearing he shall

have the right to call witnesses to testify in his

behalf and he and his representatives shall have the

right to cross-examine witnesses who are used in

support of the charges.

(b) The hearing will be held within ten (10) days of

the date when charged with the offense. A written

decision will be rendered within thirty (30) days

after completion of the hearing. If discipline is

assessed, the decision will state the reason there

for.

(c) An employee who considers himself unjustly

treated shall have the right of hearing and appeal as

provided in this Rule 50 and 51 if written request is

made to his immediate supervisor. If hearing is

requested it will be held within ten (10) days of the

date of the request and all of the time limits pro

vided in Rule 51 will be applicable in the event of

appeal.

Form 1 Award No. 29343 Page 3 Docket No. SG-29507 92-3-90-3-444 (d) A transcript will be made of the evidence taken at the rearing and copies will be furnished the employee and his representative.

RULE 51

HANDLING OF APPEALS

(a) An enployee dissatisfied with the decision will

have the right of appeal, individually or through his

duly accredited representative, in regular order of

succession and in the manner prescribed up to and

includin^<_ the highest official designated by the

Company _o whom appeals may be made.

(b) An employee dissatisfied with the initial deci

sion shall have a fair and impartial hearing before

the next higher officer provided written request is

made to such officer by the employee or his duly

accredited representative (with copy to the officer

whose decision is appealed) within thirty (30) days

of the date of the initial decision. Such hearing,

which will be held within ten (10) days after date of

appeal, will be based on the record of the initial

hearing. Decision on appeal and any subsequent

handling will be governed by the provisions of Rule

54 exce:_ that that rule shall no apply to requests

for leniency.

(c) Ex:=_pt as otherwise provided in Rule 28(h) dis

putes :evolving application of rules governing rates

of pay and working conditions at other than the

Signal Shop will be handled with the Division

Engineer and on appeal to the Assistant to Vice

President-Labor Relations. Any disputes, including

discipline, arising at the Signal Shop will be

handled with the Superintendent-Signals and on appeal

to the assistant to Vice President-Labor Relations.

Except as otherwise provided, disputes involving discipline will be handled with the Superintendent, General ?tanager of the Region involved (except Buffalo Division will be handled with the General Manager of the Northern Region) and the Assistant to Vice President-Labor Relations.

(d) Time limits provided in Rules 50(b) and 51 may be extended by mutual agreement."

Form 1 Award No. 29343 Page 4 Docket No. SG-29507 92-3-90-3-444 It is the Carrier's position that the Claimant was afforded a fair and impartial Investigation in the disciplinary action and was proven guilty of serious charges for which the disciplinary action taken was entirely justified and, according to danger of faulty signals to other employees and the enormous amount of liability to the Carrier. For its part, the Organization cites Rule 50, supra, and Rule 52 which states:

"RULE 52

EXONERATION If the charge against an employee is not sustained, _t shall be stricken from the record. If by reason of such unsustained charge, the employee has been removed from the position held, reinstatement will be made and payment allowed for the assigned working hours actually lost, less any earnings in or out of the service." It is the position of the Organization that the Carrier violated the Agreement, particularly Rule 50, by failing to prove that discipline was warranted against the Claimant. It is also the position of the Organization that the discipline imposed should be set aside because the Carrier failed to provide a fair and impartial hearing due to the transcript being less than complete and accurate. Therefore, the Organization asks that the discipline assessed the Claimant be set aside. The Board finds no fatal procedural defect in this record. Turning to the merits, the fact that required tests were not completed is not in dispute. The Claimant readily admitted that he did not complete tests that were required as part of his job. However, the Claimant demonstrated that the Carrier was constructively aware of his dereliction, through the Supervisor, who simply instructed him to make notations on his paperwork stating "tests not done, not enough time." It is evident to this Board that both Claimant and Carrier, through its Supervisor, shoulder a portion of the blame. The Claimant did not fulfill the responsibilities entailed in his position as Signal Maintainer. However, it is clear from the transcript that his Supervisor was aware of and ignored the fact that the Claimant, for whatever reasons, was not fulfilling the requirements of his position. There is no question of the danger imposed to the Carrier, fellow employees, and the general public if signals are not properly maintained. Claimant's culpability can be justified and warranted discipline, but because his Supervisor condoned or ignored his dereliction and then treated him as a scapegoat, this Board will modify the disciplinary penalty by reducing the suspension from 30 to 20 days and lifting the restriction on future assignme Form 1 Award No. 29343 Page 5 Docket No. SG-29507 92-3-90-3-444 A W A R D Claim susta:led in accordance with the Findings. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attest: Nancy J. - Executive Secretary Dated at Chicago, 1_:_nois, this 25th day of August 1992.