Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43453 Docket No. MW-44390 19-3-NRAB-00003-170499

The Third Division consisted of the regular members and in addition Referee Peter R. Meyers when award was rendered.

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

PARTIES TO DISPUTE: (

(Keolis Commuter Services, LLC

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The discipline (dismissal) imposed upon Mr. R. Sanchez by letter datedSeptember23,2016forallegedfailuretoperformhisflagman duties on August 31, 2016 was on the basis of unproven charges, arbitrary, excessive and in violation of the Agreement (Carrier's File BMWE 16/2016 KLS).

(2) As a consequence of the violation referred to in Part (1) above, Claimant R. Sanchez shall be reinstated to service with seniority and all other rights and benefits unimpaired, his record cleared of thechargesleveledagainsthimandshallbecompensatedfor alllost wages and benefits."

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 notice dated September 2, 2016, the Claimant was directed to attend a formal investigation and hearing on charges that he allegedly had failed to perform his duties as a flagman and failed to provide proper on-track protection by making track a contractor was working on inaccessible on August 31, 2016. The investigation was conducted, after a postponement, on September 16, 2016. By letter dated September 23, 2016, the Claimant was informed that as a result of the investigation, he had been foundguilty aschargedandthathewasbeingdismissedfromtheCarrier'sservice. The Organization subsequently filed the instant claimon behalf of the Claimant, challenging the Carrier's decision to discipline him. The Carrier denied the claim.

The Carrier contends that the instant claim should be denied in its entirety because clear and unrebutted evidence establishes that the Claimant was guilty as charged, because the Claimant's violation of cardinal safety rules is inexcusable, because there is no merit to the Claimant's defenses, and because the discipline imposed was appropriate. The Organization contends that the instant claim should be sustained in its entirety because the Carrier failed to meet its burden of proof, and because the discipline imposed was arbitrary, excessive, and unwarranted.

The parties being unable to resolve their dispute, this matter came before this Board.

The Board has reviewed the evidence and testimony in this case, and we find that there is sufficient evidence in the record to support the finding that the Claimant was guilty of violating Carrier's Code of Conduct Rules 1, 8, 9, 17, as well as NORAC Rules 4, 131, and 141, and RWP Rule 327, when he recklessly failed to properly protect a stretch of track he was responsible for protecting on the night of August 31, 2016. The Claimant had been assigned to perform flagging duties for a contractor that was performing work on a stretch of track. He was supposed to ensure that the track was protected so that oncoming trains would not approach while the work was being performed. The Claimant did not throw the proper switch as he was assigned to do. As a result, a freight train carrying sulphuric acid cars entered the area while work was being performed.

Once this Board has determined that there is sufficient evidence in the record to support the guilty finding, we next turn our attention to the type of discipline imposed. This Board will not set aside a Carrier's imposition of discipline unless we find its actions to have been unreasonable, arbitrary, or capricious.

The Claimant was dismissed for his wrongdoing in this case. The violation that the Claimant committed was one of the most serious rules on the railroad. This Board cannot find that the Carrier acted unreasonably, arbitrarily, or capriciously when it terminated the Claimant's employment. Therefore, this claim must be denied.

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 1st day of March 2019.