"Claim of the System Committee of the Brotherhood that:

(1) The discipline (removal from service on September 12, 2005 and

termination effective immediately on September 30, 2005)

imposed upon Mr. D. J. Mullen in connection with charges of

alleged violation of AMTRAK `Standards of Excellence' section

`Attending to Duties' and Rule 1.9 and Rule 1.29 of the General

Code of Operating Rules ffor Maintenance of Way Employes,

while assigned to provide positive on-track protection for

contractor personnel working on the Hillsdale Station

improvement project on August 31, 2005 and again in connection

with charges of alleged violation of AMTRAK `Standards of

Excellence' section `Attending to Duties' and Rule 1.6 and Rule

1.29 of the General Code of Operating Rules for Maintenance of

Way Employes, while providing positive protection for contractor

personnel working on the Hillsdale Station improvement project

on September 6, 2005, was arbitrary, capricious, unwarranted

and excessive (Carrier's File BMWE-521D NRP).

(2) As a consequence of the violation referred to in Part (1) above, Claimant D. J. Mullen shall `. . . now be reinstated to the service of the Carrier to his former position with seniority and all other rights restored unimpaired, compensated for net wage and benefit loss suffered by him since his removal from service and

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved dune 21,1934-

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

At the time this dispute arose which resulted in the Claimant's dismissal, the Claimant was a Track Foreman/Flagman. On the relevant dates, operations over the main line track near Hillsdale, California, were restricted due to a construction project. The Claimant was the Foreman in charge, which meant that trains operating through the territory needed the Claimant's permission to proceed. Trains proceeding through the territory were commuter trains.

On August 31, 2005, Train Operators were unable to contact the Claimant to obtain permission to proceed because the Claimant had not reported for duty at his assigned starting time of 7:00 A.M., forcing the Carrier to make alternative arrangements to assign an employee to give the required permissions for movement. As a result, nine trains were delayed. The Carrier was able to contact the Claimant at home after 9:00 A.M. and found that he was still sleeping. The Claimant attributed his oversleeping to a power failure and a diabetic condition.

On September 6, 2005, the Claimant drove his vehicle onto the right-of-way in order to be in position to provide protection. However, the Claimant's vehicle got stuck, resulting in the delay of two trains. The record shows that the Claimant could have positioned himself in another location so that he could provide protection and not jeopardize train movements.

07-3-06-3-306