Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43553 Docket No. SG-44824 19-3-NRAB-00003-180245

The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens when award was rendered.

(Brotherhood of Railroad Signalmen

PARTIES TO DISPUTE: (

(Northeast Illinois Regional Commuter Railroad (Corporation

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Northeast Illinois Regional Commuter Railroad Corp:

Claim on behalf of L. Dumas, for compensation for all time lost, including overtime, with all rights and benefits unimpaired, and with any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 53, when it issued the harsh and excessive discipline of a 10-day actual suspension against the Claimant, without providing a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on November 10, 2016. Carrier's File No. 11-7-998. General Chairman's File No. 33-D-16. BRS File Case No. 15834-NIRC."

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.

At the time of this dispute, the Claimant was assigned to the position of Vacation Relief Signal Maintainer in the Carrier's Signal Department. The Claimant entered the Carrier's service in December 1999 as an Assistant Signalman. On October 10, 2016, the Claimant was given notice of an investigation in connection with the following charge:

"The purpose of this investigation is to develop the facts, determine the cause, and access responsibility, if any, in connection with your alleged failure to receive authority to enter the limits of the DC Department Form D on Track #1 at MP 20.45 on Wednesday, October 5, 2016. In connection therewith, you are hereby charged with alleged violation of Maintenance of Way Rules Rule 5.4.7-Display of Red Flags. Your past work record, copy of which is attached, will be reviewed at this investigation."

After a formal investigation on November 10, 2016, the Claimant was found in violation of Maintenance of Way Rules Rule 5.4.7 - Display of Red Flags, and was assessed a ten days actual suspension.

On October 5, 2016, the Claimant was working with a Positive Train Control ("PTC") testing team, consisting of Carrier employees and an outside contractor. The Claimantwas operating the hy-rail vehicle used by the testing teamandwasresponsible for acquiring the necessary protection to operate on the track. The Claimant received Track and Time on Track No. 1,with limits fromCP19.89 up to Milepost 22.67.A Form Dwas in effectfromMilepost 22.67 to Milepost 22.88,the limits ofwhichwere protected by red flags. A second protection warning stated that Track 1 would be de-energized between Mileposts 20.45 and 23.65.

As the Claimant approached Milepost 22.67,he saw a red sign or flag at Milepost 20.45 which read, "Electric Trains Must Not Pass This Point." The Claimant testified that he was unsure what to do next, so he stopped the hy-rail van and tried to contact theEmployeeinCharge("EIC")oftheFormD for30minutestonoavail.TheClaimant exited the van and moved the sign before continuing southbound on the track, hoping to get better radio reception. The Claimant was still unable to contact the EIC, but he was eventually contacted by the dispatcher, who gave him the telephone number of the EIC who had placed the banner at Milepost 20.45. The Claimant reached the EIC, who told the Claimant to return northbound beyond the banner and to exit his limits.

The Carrier contendsthat it has provided substantial evidence that the Claimant violated MOW Rule 5.4.7, Display of Red Flags, which states, in part:

"Maintenance of Way Rule 5.4.7 - Display of Red Flags: A red flag is displayed where trains or on-track equipment must stop. When approaching a red flag, the train or on-track equipment must stop short of the red flag and not proceed unless the employee in charge gives verbal permission including the milepost location of the red flag. If permission to proceed is received before the train or on-track equipment stops, the train or on-track equipment may pass the red flag without stopping."

The Carrier contends that witnesses testified that the Claimant moved the red flag without authorization and that the Claimant admitted moving the red flag to move forward to try to obtain a better radio signal. The Carrier contends that when the Claimant spoke with EIC House, he was told to exit his limits. The Carrier contends that the Claimant's actions in moving a red flag restricting his access to enter the limits andthenenteringthelimitsoftheFormDwithoutauthority wereimproperandunsafe. The Carrier contends that by entering the Form D without the EIC's knowledge and/or authorization, the employees working in the Form D had no knowledge of the approaching hy-rail van. The Carrier contends that the Claimant, and no one else, was responsible forthe hy-rail van enteringthe limits of FormD. The Carrier contendsthat the Claimant was aware of the Form D and he understood that he needed permission to enter the limits, but he moved the flag and proceeded anyway.

The Carrier contends that the Claimant was a 17-year employee who was rule qualified on both GCOR and MOW Rules. The Carrier contends that the rule and flag have been in effect and used on the Carrier's Electric District for nearly 25 years. The Carrier contends that if the Claimant was unsure of the flag's meaning, he should have contacted his supervisor for clarification.

The Carrier contends that the discipline assessed was commensurate with the rules violation and in accordance with the Carrier's Progressive Discipline Policy. The Carrier contends that at the time of the discipline, the Claimant was on Step 3 of the Carrier's Progressive Discipline Policy, and so was appropriately disciplined at the next

step, or Step 4. The Carrier contends that the discipline was neither excessive nor capricious.

The Organization contends that the Carrier has failed to show with substantial evidence that the Claimant violated MOW Rule 5.4.7, because the sign that he encountered stated, "Electric Trains Must Not Pass This Point" and cannot be considered a red flag as covered in Rule 5.4.7. The Organization contends that this sign indicates locations where the DC contact wire is de-energized, but Red Flags are used to protect out of service or impassable track. The Organization contends that MOW Rule 5.4.7 makes no mention of the electrical sign at issue in this case.

The Organization further contends that the Claimant had track and time granting him authorization to operate to Milepost 22.67, the limits for the EIC's out of service limits. Further, the Organization contends that the Claimant was unfamiliar with the electric sign used and, therefore, did not willfully violate the rule.

TheBoardsitsasanappellateforumindisciplinecases.Assuch,itdoesnotweigh the evidence de novo. Thus, it is not our function to substitute our judgment for the Carrier's judgment and decide the matter according to what we might have done had the decision been ours. Rather, our inquiry is whether substantial evidence exists to sustain the finding against the Claimant. If the question is decided in the affirmative,we are not warranted in disturbing the penalty absent a showing that the Carrier's actions were an abuse of discretion.

The Claimant is charged with violation of MOW Rule 5.4.7, Display of Red Flag. In his testimony, the Claimant admitted that when he came upon the Red Flag stating "Electric Trains Must Not Pass This Point," he stopped the hy-rail vehicle and sought permissiontopasstheflag. Yet,withoutreceivingpermissionfromtheEIC,heremoved the red flag and passed it, causing the EIC to object to his having entered his limits without permission. If the Claimant was unsure what to do, he was obligated to contact his supervisor for instruction. The rule that the Claimant is charged with violating is one of many that provide for the safe movement of trains and equipment. Fortunately, the EIC saw the Claimant's hy-rail and made contact with the Claimant after he had entered the EIC's limits but before he reached the impassable track. The Carrier presented substantial evidence that the rule was violated.

The remaining question is whether the level of discipline imposed was arbitrary. The Claimant was at Step 3 on the Carrier's Progressive Discipline Policy. The Carrier

imposed discipline at Step 4, the next step in its policy. Accordingly, the ten-day suspension was not an abuse of the Carrier's discretion under the circumstances and no basis exists for the Board to overturn the discipline.

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 27th day of March 2019.