Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42818 Docket No. MW-43176 17-3-NRAB-00003-150357

The Third Division consisted of the regular members and in addition Referee Erica Tener when award was rendered.

(Brotherhood of Maintenance of Way Employes Division ( IBT Rail Conference

PARTIES TO DISPUTE: (

(Soo Line Railroad Company (former Chicago, ( Milwaukee, St. Paul and Pacific Railroad Company)

STATEMENT OF CLAIM:

"A Claim of the System Committee of the Brotherhood that:

(1) The discipline (dismissal) imposed upon Mr. M. Hoffman by letter dated March 5, 2014 for his alleged violation of OTS 21.2 Occupying or Fouling Non-Controlled Track and OTS 21.3 Lookouts on February 13, 2104 was on the basis of unproven charges, arbitrary, capricious, and excessive and in violation of the Agreement (System File D-05-14-445-02/8-00550 SOO).

(2) As a consequence of the violation referred to in Part (1) above, Claimant M. Hoffman shall be reinstated to service with seniority rights unimpaired, his record shall be cleared of the charges leveled against him and he shall be compensated '. . . for all lost wages, straight time, overtime, paid and non-paid allowances and safety incentives, expenses, per diems, vacation, sick time, health & welfare insurance, dental insurance, supplemental insurance, and any and all other benefits to which entitled ***.'"

FINDINGS:

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 June 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.

By letter dated February 14, 2014 Claimant was instructed to attend an investigation on February 20, 2014 to determine all of the facts and responsibility in connection with alleged violations of On-Track Safety Rules 21.2 - Occupying or fouling non-controlled tracks and 21.3 - Lookouts. As a result of the investigation, Claimant was dismissed by letter dated March 5, 2014.

The facts in this matter are largely undisputed. On February 13, 2014, the Claimant and another employee were clearing snow from switches at the Carrier's rail yard in Harvey, ND. While fouling the track, it was the Claimant's responsibility to act as watchman/lookout while the other employee used a back-pack blower to blow snow from the switch points. At approximately 10:12, FRA inspector Anderson observed the employees cleaning the 5 switch. The FRA inspector observed the Claimant pick up a shovel, foul the tracks, and help with snow removal.

The Claimant admitted that he violated OTS Rules 21.2 and 21.3. The Carrier argues that these safety rules are crucial for the protection of all employees. The Claimant had a responsibility to his co-worker and himself to devote his full attention to detecting approaching trains. When the Claimant became engaged in the snow removal, the Carrier asserts, he could not provide adequate protection. Based on the severity of the violation, the Carrier argues it assessed the appropriate discipline in accordance with its discipline policy.

The Organization argues that there are several mitigating factors to take into account for this event. The crew was not fully staffed and was working without a Foreman at the time of the incident. The Claimant and his co-worker took steps to ensure their safety under lookout protection. They held a job briefing with the train crew and confirmed the crew had no cars to switch in/out that day. The Claimant also confirmed that the switches were lined against them. The snow that was being cleared was hard-packed and could not easily be removed using only the back-pack blower. The employees needed to use other means to fully and properly clear the track as evidenced by witness testimony. The Organization argues the Claimant had no malicious intent when he picked up the shovel to assist his co-worker.

The Board has carefully reviewed and considered the record in this situation and finds that the Claimant did violate the Carrier's safety rules. However, under the unique circumstances and the mitigating factors of this case, Claimant shall be returned to service, but without back pay. Insofar as this decision is based on unique circumstances, the Board deems this award non-referable.

AWARD

Claim sustained.

ORDER

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.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 28th day of November 2017.