This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Claimant was suspended for 16 days not following the proper procedures for planned work and the placement of yellow/red signs and red signs on the Dubuque Subdivision between Mile Posts at 236.1 and 246.8 on September 20, 2008. At the time of the incident, the Claimant had approximately five and one-half years of service. His work record did not contain any prior instances of discipline. He was the Employee-in-Charge of placing the signs on the day in question.
According to the record of the Investigation, the Claimant was disciplined because he did not have the yellow/red and red signs in place at 7:30 A.M., which was the starting time of his planned work period. He was cited for violating Operating Rule 1101, as well as several other more general Rules.
It is undisputed that the Claimant's planned work time did begin at 7:30 A.M. He was in the process of placing his first yellow/red sign at Mile Post 233.1 at that time when he heard his radio speaker broadcast that a train yeas just passing the hot box detector at Mile Post 236.1, which was three miles farther down the line from his location. The train had already passed by his location and went into his planned work limits without asking for permission to enter and proceed through. The incident came to light when the Claimant reported the error of the train crew.
beginning of his time period in which to place the yellow/red signs. It is clear that they did not have to be in place right at 7:30 A.M. Rule 1101 governs the placement of the red sign. The Rule specifies where the sign must be placed in relationship to the track. But it does not explicitly state when the signs must be in place to protect planned work. The Rule states only that the signs ". . . must be displayed . . . only during the hours Planned Work is in effect." As written, the Rule prohibits putting up a red sign earlier than the beginning of the Planned Work period or leaving the sign up after the end of the period. More importantly, the Rule text does not appear to support the Carrier's determination that it required the Claimant to have the two red signs in place, more than ten miles apart from each other, not earlier than 7:30 A.M. nor later than 7:30 A.M. The Carrier's application of the Rule in this manner, which is beyond what the Rule actually states, creates a practical impossibility. Form I Award No. 40946
in place before he or any members of his gang began fouling the track limits to perform their planned work.
Given the foregoing circumstances, we are compelled to find that the record does not contain substantial evidence in support of the Carrier's disciplinary determination. Accordingly, the claim must be sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
