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 employe 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 September 27, 1990, Claimant, seniority date March 15, 1990, was working the 4:00 P.M. to 12:00 midnight shift as Tower Operator at the Griffith Tower. The tower, located on Broad Street in Griffith, Indiana, is a main thoroughfare for both vehicular and railroad traffic with six sets of railroad tracks. At this particular crossing, the Tower Operator manually activates the crossing gates by "throwing" a lever approximately two inches long. Form 1 Award No. 29608
Thus, the gates are physically triggered by the Operator. In addition, in the event of a wiring or circuit failure, the gates are designed to activate automatically.
At approximately 7:20 P.M. on September 27, 1990, a west bound Grand Trunk Western Train consisting of no fewer than 25 cars traveled through the Broad Street crossing at approximately 25 miles per hour. Although the sound of the approaching train was heard, the gates were never activated. After the train cleared the crossing, the gates still had not been lowered, however, according to an eyewitness, a Town of Griffith Council Member, the gates then came down for approximately two minutes, and were subsequently raised.
The Council Member concerned about the potential gravity of the situation, addressed a letter to the E J & E Signal Department which read in pertinent part as follows:
By letter dated October 4, 1990, Claimant was notified that an Investigation was to be convened:
Following the Investigation, the Claimant was assessed 60 demerits for being in violation of Rule 700, Rules of the Operating Department, which states in pertinent part:
The organization maintains that the Claimant was a relatively new employee who was not regularly assigned to the position, and although the Claimant readily admitted his failure to activate the switch, the organization asserts that the following portion of the Claimant's testimony serves as an explanation of the incident.
The Organization further argues that even if the Claimant was culpable of the infraction, the discipline imposed is "excessive and an abuse of discretion," in view of the fact that the incident did not result in injuries or any liability to the Carrier. Form 1 Award No. 29608
For its part, the Carrier maintains that the Claimant "was properly charged, given his contractual due process rights through a fair and impartial investigation, wherein his culpability as charged was clearly established, and the discipline assessed was not excessive," in light of the potential consequences of the claimant's failure to properly activate the switch.
A review of the evidence presented to this Board indicates the following: The gates at Griffith Tower were placed there for the protection of the general public, and proper operation of these devices does not appear to be difficult. Further, Operators assigned to perform service at the Griffith Interlocking Tower receive an increased rate of pay solely to insure the safe operation of these protection devices.
While it is commendable that Claimant was forthcoming with an admission of guilt concerning this incident, his admission does not diminish the potential consequences of his negligence. The Organization's statement that there was "no near accident" and the "Carrier incurred no liability" is moot when one considers what could have occurred.
Although the penalty assessed by Carrier may seem harsh under the circumstances, it has long been a policy of this Board to refrain from substituting our judgment for Carrier's unless we find the discipline assessed to be excessive and unreasonable or arbitrary. In light of the gravity of potential liability to the Carrier we see no reason to disturb Carrier's determination of discipline in this case.