C:\MYDOCU~1\SCHEDU~2\3-29452.htm

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29452 THIRD DIVISION Docket No. MW-29888 92-3-91-3-254 The Third Division consisted of the regular members and in addition Referee Elizabeth C. Wesman when award was rendered. (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (CSX Transportation, Inc. (former Seaboard Coastline ( Railroad Company) STATEMENT OF CLAL1t: "Claim of the System Committee of the Brotherhood that: (1) The discipline assessed Bridgeman C. E. Gowen, a letter of reprimand, for his alleged violat an incident at the Trout River Bridge in Jacksonville, Florida on August 1, 1989, was arbitrary, capricious, based on unproven charges and in violation of the Agreement [System File 89-58/12(89-873) SSY]. (2) As a consequence of the violation referred to in Part (1) above, the Claimant shall be compensated for any monetary loss due to the investigation which was held in c record shall be cleared of all charges with regard to this instance." 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. On the date of the incident at issue Claimant was regularly assigned as a Relief Bridgetender at the Trout River Bridge on the 2:00 P.M. to 10:00 P.M. shift. On August 1, 1989, at approximately 7:00 P.M., a severe thunderstorm passed over the Tro piloted by Mr. Grady Braddock arrived and was waiting to have the bridge raised. Mr. Braddock elected to wait about 30 minutes before blowing the horn on his boat to alert the Claimant. After Mr. Braddock blew his horn, the Claimant raised the bridge. Form 1 Award No. 29452
Page 2 Docket No. MW-29888
92-3-91-3-254
In a letter dated August 9, 1989, Claimant was notified as follows:
"You are hereby charged with violation of CSX
Transportation Operating Rules as follows:

Rule 50L - Civil and courteous behavior is required of all employees in their dealings with customers, fellow employees and the pubic. Boisterous, profane, or vulgar language is pronibited.

Ru:> >02 - Employees must devote themselves excLusively to the Company's service while on duty, rendering every assistance In their power in carrying out the rules and special instructions."

T'i,:,e char~z, are the result of an incident whizzh took place on August 1, 1989 at 7:00 P.M. at the Trout River Drawbridge in Jacksonville, Florida while you were working as -Bridge Tender. This incident involved a private boat traveling on the Trout River which needed to pass the bridge on whi-i you were working.'

A Hearing was held on August 18, 1989, after which the Carrier issued Claimant a letter .)f reprimand dated September 6, 1989. The discipline was appealed up to and includtn3 _ie Carrier's highest ;appellate officer.

Because )f the nature of Claimant's position, the only witnesses to the alleged incident are Claimant and Mr. Braddock. At the Investigation, Mr. Braddock testified that the Claimant refused to come out into a light rain, but relented after a minute or so and then opened the bridge at a studiously slow pace. In addition, Claimant immediately turned his back on the boat as it passed through and demonstrated an "attitude" Mr. Braddock found offensive. He also testified that on the day in question it took Claimant no longer to open the bridge than normally.

The Claimant testified that when Braddock's boat initially approached the bridge there :was still so-me thunder and lightning with the rain storm. He said he saw Mr. Braddock's boat wait under the adjacent highway bridge for the storm to abate. Claimant testified that after about half an hour Braddock left the highway bridge and blew his horn for Claimant to open the railroad bridge. Claimant :,std he told Braddock that he was reluctant to venture out even then because )f the possibility of lightning, but he nevertheless opened the bridge right after Braddock sounded his boat horn. The Claimant also testified that he turns his back on boats and watches them from the other side of the bridge because he has Seen "verbally abused because they think [he is] standing there looking at their girl friends and stuff." Claimant also stated that some boat passengers had directed racial slurs toward him, so he prefers to watch boats pass from the other side of the bridge.
Form 1 Award No. 29452 Page 3 Docket No. MW-29888 92-3-91-3-254 It has been a long-standing practice on this and other Boards that in matters of credibility, the Board is extremely reluctant to substitute its judgment for that of Carrier. In the instant case, however, even the testimony of the Carrier's witn on the night in question. 'qr. Braddock testified that Claimant took no longer to open the bridge on August 1, 1989, than on other occasions when Braddock had traveled the Trout River. He testified further that "just a few seconds" after Claimant said something about not coming out, he came out of the guardhouse and opened the bri that he believed Claimant did not wish to come out in the rain, and that Claimant turned his back to In short, there is ao evidence on the record before us to suggest that Claimant acted in an abnormal fashion with respect to raising the bridge for '9r. Braddock's boat. Carrier has failed to show by clear and convincing evidence that any violation occurred. See Third Division Award 22008 on this property. Accordingly, we fad no basis for even the minimal discipline assessed by Carrier in this case.

A 'd A R D

Claim sustained. NATIONAL RAITAOAD ADJUSTMENT BOARD By Order of Third Division Attes Nancy J. er - Executive Secretary Dated at Chicago, Illinois, this 21st day of October 1992.