Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42821 Docket No. MW-43030 17-3-NRAB-00003-150157

The Third Division consisted of the regular members and in addition Referee George Edward Larney when award was rendered.

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

PARTIES TO DISPUTE: (

(Dakota, Minnesota & Eastern Railroad Corporation

STATEMENT OF CLAIM:

"(1) The discipline (dismissal) imposed on Mr. K. O'Key by letter

dated September 26, 2013 alleged violation of General Code of Operating Rule 1.1 Safety, Rule 1.1.1 Maintaining a Safe Course, Rule 1.1.2 Alert and Attentive, Rule 1.6 Conduct, Canadian Pacific Core Safety Rule 12 Vehicles, Equipment and Tools and Canadian Pacific Core Safety Rule : Material Handling in connection with his alleged . . . Rules violation in which you came into contact with OH power line while on duty (assigned to operate a material truck) in Charles City, Iowa on September 4, 2013 was without just cause, excessive, on the basis of unproved charges and in violation of the Agreement (System file J-1334D-504/8-0017 DME).

(2) As a consequence of the violation referred to Part (1) above,

Claimant K. O'Key shall be reinstated to service with seniority and all other rights unimpaired, and he shall . . . be compensated all lost time, be made whole of all losses, including months of service credit with Railroad Retirement Board, until he is returned to work and have any reference to the investigation removed from his personnel record as outlined in Rule 34 (6) of the effective Agreement."

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.

Although barely in his second season of employment with Carrier at the time the incident occurred the morning of September 4, 2013, Claimant nevertheless had established and held seniority within Carrier's Maintenance of Way Department. On the incident date in question giving rise to this subject claim, Claimant was assigned and working as a Material Truck Operator.

On August 26, 2013 just nine days prior to the incident that led to Claimant's dismissal, a Carrier employee while located in a boom lift work platform which was elevated from the road below was performing inspection and recording measurements from the underside of the bridge when the boom made contact with a high voltage power line and, as a result, the employee was electrocuted and died. Although this incident occurred at Harpursville, New York near Binghamton, New York, Carrier convened a Dynamic Safety Review (DSR) at its Charles City, Iowa location on September 3, 2013. Remington Hill, Manager of Utility Crews was one of two Carrier officers that conducted the DSR for his RCO utility crew of which Claimant was one of ten crew members attending the DSR the subject of which was, Operating Around Overhead Power Lines.

During his tour of duty on September 4, 2013 Claimant was instructed to operate a material truck to Mason City, Iowa to pick up plank and rail and return to the job site in Charles City, Iowa. Upon returning to the job site, Claimant was instructed by Track Foreman K. Hauer to unload the material from his truck in a specific location that was free of overhead power lines. At approximately 9:30 A.M. Claimant, without authority to do so, moved his truck to a location other than the location he was directed by Hauer to be at to unload the plank and rail from his material truck. As he began to unload the material from the truck, the boom on the truck made contact with the overhead power lines. No one was hurt and no property damage occurred as a result of this incident. Nevertheless, Carrier obtained a written admission from Claimant before immediately removing him from service which read as follows:

"I pulled up to unload my truck, I did not see the power line, it is all my fault."

By letter dated September 9, 2013 Carrier summoned Claimant to attend a formal investigation to be convened on September 17, 2013 apprising the purpose of the investigation/hearing was to determine all of the facts and circumstances and to place responsibility, if any, in connection with his alleged Rules Violation in which he came in contact with OH power lines while on duty (assigned to operate a material truck) in Charles City, Iowa on September 4, 2013. The formal investigation was held as scheduled on September 17, 2013 after which Carrier notified Claimant by letter dated September 26, 2013 that upon its review of the hearing transcript, it was determined that he had violated General Code of Operating Rules (GCOR) 1.1 Safety, 1.1.1 - Maintaining a Safe Course, 1.1.2 - Alert and Attentive, 1.6 - Conduct, and Core Safety Rule 12 - Vehicles, Equipment and Tools and Material Handling. As a result of these proven multiple Rules violations committed by him, Carrier informed Claimant he was being dismissed from its employ. On the date of this notification of his dismissal from service, Claimant had been withheld from service for a total of 22 days. In response to Carrier's dismissal of Claimant as the appropriate and commensurate discipline for violations of the stated GCOR Rules, the Organization filed the claim on November 5, 2013 which is now before the Board for final resolution.

In its defense of Claimant the Organization presented several failings by Carrier which in essence alleviated total responsibility on Claimant's part for the occurrence of the incidence which was shown to have serious safety implications as evidenced by the death of one of Carrier's employees by electrocution when a boom made contact with a power line; certainly an eerie coincidence just nine days before the occurrence of the subject incident. The Board is persuaded the Organization has advanced valid points in support of its main position Claimant should not bear the full responsibility for the occurrence of the incident citing such factors as Carrier's not having adequately trained Claimant in all his duties as a Material Truck Operator but more specifically with regard to operating around power lines and assessing Claimant the ultimate disciplinary action of dismissal for a first infraction of the rules which is counter to its own progressive disciplinary policy. However, as valid as the Organization's argument is in defense of Claimant it cannot overcome Claimant's action of countermanding the instruction of his manager to unload his truck at a specific location by moving his truck to another location to unload his truck without authorization to do so. Had Claimant sought and been granted such authorization, to move his material truck to the other location, the Organization's position would have prevailed and the claim here sustained. This however is not the case and we rule to deny the claim in its entirety.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

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