PUBLIC LAW BOARD NO. 1582
PARTIES) THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY
TO )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM:
1. That the Carrier's decision to assess a deferred suspension of
thirty (30) days commencing June 28, 1993 for Central Region, Extra
Gang Foreman W. D. Kennedy from service was unjust.
2. That the Carrier now expunge the Deferred Suspension Letter
dated June 28, 1993 from Claimant Kennedy's personal record as a
result of investigation held 1:00 p.m., June 16, 1993 continuing
forward and/or otherwise made whole, because the Carrier did not
introduce substantial, creditable evidence that proved that the
claimant violated the rules enumerated in their decision, and even
if claimant violated the rules enumerated in the decision, removal
from service is extreme and harsh discipline under thecircumstances.
3. That the Carrier violated the Agreement particularly but not
limited to Rule 13 and Appendix 11 because the Carrier did not
introduce substantial, credible evidence that proved the claimant
violated the rules enumerated in their decision.
FINDINGS: This Public Law Board No. 1582 finds that the parties
herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, and that this Board has jurisdiction.
In this dispute the claimant was notified to attend an investigation
in El Paso, Texas on May 21, 1993. The claimant was charged with
failing to properly align a switch for main track movement after
making reparis to Switch 0425 at MP 1150.5 on May 10, 1993.
The investigation was to be held to determine the facts involving
a possible violation by the claimant of Rules A and B of the General Code of Operating Rules, effective October 29, 1989, Rules
666, 1051 and 1059 of the Rules and Instructions for Maintenance
of Way and Structures effective-October 29, 1989 and Rule 1007 of
the Safety and General Rules for All Employees, Form 2629 Standard,
in effect October 29, 1989.
By agreement of the parties the investigation was postponed until
June 16, 1993. Pursuant to the investigation the claimant was found
to be in violation of Rules A and B of the General Code of Operating
Rules and Rules 666, 1051 and 1059 of the Rules and Instructions for
Maintenance of Way and Structures. The Carrier assessed the claimant
a 30 day deferred suspension commencing June 28, 1993.
Pea
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Award No. 509
Page 2
The Union contends the Carrier did not introduce substantial,
creditable evidence that proved the claimant violated the rules
enumerated in the decision. Further the Union contends that even
if the claimant violated the rules enumerated in the decision,
removal from service is extreme and harsh discipline under the
circumstances.
The transcript contains 46 pages of testimony, all of which have
been carefully studied by the referee.
The transcript of record does not establish any violations or any
reference to Rule A or Rule B. Also the evidence fails to establish any violation of Rule 1051. There is simply no testimony
establishing a violation of this rule. Although the claimant was
also charged wit:: violation of Rule 1007, he was not found guilty
of violating that rule.
There was a slight delay to Train 717. There was also a question
of whether the claimant failed to immediately return Switch 0425
to its original position. In order to determine that question,
it is necessary to study the testimony of the claimant, Trainmaster
Puentes and Special Agent Holden.
The
Union has
raised the question of other vehicle tracks which were
apparently made after this crew was at the location of Switch 0425.
Agent Holden testified there were other tracks at that location;
however, there were no footprints going from the vehicle to the
vicinity of Switch 0425. Under those circumstances there is no
indication that someone from another vehicle had a key and changed
the switch.
Also it is further noted that all members of the crew including the
claimant testified that they believed the switch was in the proper
position. The claimant testified he always turned the switch to
the proper position, and further that the red reflector would be
showing if it was not in the proper position.
Trainmaster Puentes testified that Trains 77.7 and 707 were the only
train movements over the switch on May 10.
The evidence establishes that a high security key is necessary to
open the switch and employees of the Carrier are the only persons
who have such keys. On that basis the Carrier is justified in
reaching a decision that the claimant herein made a mistake on the
date in question.
However, the Board finds the discipline assessed is too severe
under the circumstances. The Carrier found the claimant guilty
of violating several rules, and such was not supported by the
evidence. Also the claimant has a very good record.
:P('8
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Award No. 509
Page 3
The claimant was not removed from service but was assessed 30 days
deferred suspension. Under the particular circumstances in this
case the Board finds that 30 days isexcessive and directs the
Carrier to reduce the suspension to 10 days deferred suspension.
AWARD: Claim disposed of as per above.
ORDER: The Carrier is directed tocomply with this award within
thirty days from the date of this award.
/ i
Pres±on(Jl Moore C. airman
Union Member
Carrier Member