Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43609 Docket No. SG-44541 19-3-NRAB-00003-170708

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

(Brotherhood of Railroad Signalmen

PARTIES TO DISPUTE: (

(National Railroad Passenger Corporation (AMTRAK)

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the National Railroad Passenger Corp. (Amtrak):

Claim on behalf of A. J. DiPalma, for reinstatement to his former position with all seniority and benefits unimpaired, compensation for all time lost, including overtime, and any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 57, when it issued the harsh and excessive discipline of dismissal to the Claimant without providing him a fair and impartial Investigation and without meeting its burden of proving the charges inconnectionwithan Investigation held on May 4,2016. Carrier's File No. BRS-SD-1200D. General Chairman's File No. AEGC-2016-102-4. BRS File Case No. 15620- NRPC(S)."

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.

The Claimant, Anthony DiPalma, has been employed by the Carrier since September 8, 1997 and held the position of Signalman when he was dismissed from service on May 16, 2016, after an investigation held on May 4, 2016 for violating the Carrier's Standards of Excellence governing Attending to Duties, Professional and Personal Conduct, and Safety; NORAC Rules, B, D, N, S, 716; Amtrak Rules Alert No. 2011-01 New Federal Regulations Governing the Use of Electronic Devices effective March 28, 2011; Amtrak's Policy on Use of Portable Electronic Devices P/I 3.23.1; and Amtrak'sCardinalRule#4forapplicableuseofelectronicdevices...performingservice on the ground, in yards or main track. The charges include the Specification:

"On the evening of Friday March 18, 2016 at approximately 5:15 PM, Signalman Anthony DiPalma's act of negligence occurred while he was working as a Watchman at "F" Tower with 2 other employees replacing a switch heater. At this time, Mr. DiPalma's personal cell phone rang within earshot of the other 2 employees while they were working on the tracks. Mr. DiPalma cleared himself and the other 2 employees from the tracks and, once cleared, about the tracks, used his personal cell phone without permission or proper authority and talked for a minute or less during the course of performing his duties. He explained to the other employees that he has a 90 + year old mother and needed to answer his phone in case of an emergency."

TheCarrierdeniedthesubsequentappealsbytheOrganizationandissuedafinal written decision sustaining the dismissal on July 27, 2017. The Organization rejected the Carrier's decision and filed its notice of intent with the Third Division. The claim is now properly before the Board for adjudication.

The Carrier maintains that the Claimant's use of his personal cell phone while performing watchman duties on the right of way violated the express prohibition against useof personalelectronic devices,stated in FRAregulations at 49 CFR§220.305 and the Carrier's Cardinal Rule #4 and policies set forth in its Standards of Excellence.

In discipline cases, the burden of proof is upon the Carrier to prove its case with substantial evidence and, where it does establish such evidence, thatthe penaltyimposed is not an abuse of discretion. The Board has reviewed the evidence and testimony and finds that there is substantial evidence in the record that the Claimant violated the Carrier's rules and applicable regulations regarding the use of personal electronic devices while on duty.

The record supports the Carrier's decision to impose discipline for the Claimant's serious misconduct. It is uncontested that on March 18, 2016, the Claimant used his cell phonewhile on the right of way working as awatchman for his co-workers. The Claimant admits to using his cell phone for the purpose of answering a call from his 95-year-old mother with whom he lives. The record confirms that the Claimant had instructed his mother to call him at work only in an emergency.

Once the Board has determined that there is substantial evidence in the record to support the charges, we must decide if the discipline imposed is unreasonable, arbitrary, and therefore, excessive. A review of the record indicates that the dismissal from service is excessive. While the Claimant should not have used his cell phone while on duty, the witness testimony establishes that the Claimant cleared the tracks and secured the work area before answering the phone in order to properly protect his coworkers and insure the safety of the Carrier's operation. While this does not excuse his improper use of the cell phone, given the unique circumstances contained in the record, and his many years of service with only one prior disciplinary infraction, we find the discipline imposed to be excessive.

The Claimant is reinstated with no back pay and his seniority unimpaired. The Claimant is warned that there are no exceptions to the Carrier's prohibition of the improper use of electronic devices in the workplace. Any personal obligations that may interfere with the safety of employees, the public, or the Carrier's operation, must be dealt with outside of the workplace. This is the Claimant's final opportunity and last chance to keep his job and any further violations of the Carrier's rules shall be grounds for immediate dismissal.

AWARD

Claim sustained in accordance with the Findings.

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 17th day of May 2019.