Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44206 Docket No. MW-45509
20-3-NRAB-00003-190327
The Third Division consisted of the regular members and in addition Referee James M. Darby when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
(Soo Line Railroad Company STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The discipline [five (5) days served without pay] imposed upon Ms.
D. Bechly, by letter dated October 11, 2017, for alleged violation of GCOR 1.1 - Safety in connection with her alleged failure to report a bridge strike on the Mississippi River swing bridge during her shift on the evening of August 12, 2017 was on the basis of unproven charges, arbitrary, excessive and in violation of the Agreement (System File D-73-17-445-37/D. Bechly CMP).
As a consequence of the violation referred to in Part (1) above, the discipline imposed upon Claimant D. Bechly shall:
‘… be set aside, and Claimant shall be made whole for all time, financial, and/or benefits lost as a result of this suspension. Any benefits lost, including but not limited to vacation and health insurance benefits (including coverage under the railroad industry National Plan) shall be restored. Restitution for financial losses as a result of the violation shall include compensation for:
straight time pay for each regular work day lost and holiday pay for each holiday lost, to be paid at the rate of the position assigned to the Claimant at the time of suspension from
service (this amount is not reduced by any outside earnings obtained by the Claimant while wrongfully suspended);
any general lump sum payment or retroactive general wage increase provided in any applicable agreement for the time Claimant was out of service;
overtime pay for lost overtime opportunities based on overtime for any position Claimant could have held during the time she was suspended from service, or for overtime paid to any junior employee for work the Claimant could have bid on and performed had the Claimant not been suspended from service; and
health, dental, and vision care insurance premiums, deductibles, and co-pays that Claimant may not have paid had she not been unjustly suspended.
In addition, all notations of this 5-day actual suspension should be removed from all Carrier records, including Claimant’s personal record.’”
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.
On September 7, 2017, the Carrier informed the Claimant she was charged with failing to report a bridge strike on the Mississippi swing bridge on the evening of August 12, 2017. At the investigation held on September 26, 2017, the evidence showed that on August 14, 2017, a contractor notified the Carrier of damage to the bridge. The Carrier determined that the damage occurred on August 12 during the Claimant’s shift when a barge backed up and collided with the bridge. It presented graphs and testimony showing certain vibrations occurring to the bridge on August 12.
The Claimant testified that she observed the barge in question pass under the bridge on August 12 and that it never backed up or collided with the bridge. She also testified that she did not experience any noises or vibrations that in her 28 years of experience typically accompany a bridge strike. The record also showed that the escalation/alert sensor on the bridge did not report a strike to the Carrier on August 12 and that another similar event had occurred on August 7 (when the Claimant was not working). The Claimant has reported numerous bridge strikes over her 28-year tenure with the Company. After the close of the investigation the Carrier found the Claimant in violation of GCOR 1.1 – Safety and assessed her discipline of 5-days served without pay for failing to report the accident.
Based on the foregoing, the Board concludes that the Carrier lacked substantial evidence to sustain the instant charges. The Claimant presented the only eyewitness testimony and she denied that the barge in question collided with the bridge. The Carrier was unable to present any convincing direct evidence that a collision event actually occurred during the Claimant’s shift. It failed to substantiate that the damage was not sustained from the prior event on August 7 and it was unable to explain why the Claimant would have neglected to report such an event as she has always done if such an event occurred during her shift. The Claimant has never before been disciplined, including for any failures to report accidents.
Accordingly, for all these reasons the claim is sustained.
Claim sustained.
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 30th day of September 2020.