s
PUBLIC LAW BOARD N0. 1760
Award No. 134
Docket No. 134
Carrier File MW-DECK-90-81-LM-638
Parties Brotherhood of Maintenance of Way Employes
to and
Dispute Norfolk and Western Railroad Company
(former Wabash)
Statement
of Claim: Claim on behalf of H. G. Ivy requesting that he be
paid for the 30-days suspended from service from February 4
through March 5, 1991 as a result
of an investigation held
on January 10, 1991 in which he was charged for failure to
protect his assignment as a foreman on Extra Gang 103 on
December 18 and 21, 1990.
Findings: The Board has jurisdiction by reason of the parties
Agreement establishing this Board for that purpose.
The Claimant was the Foreman of Extra Track Gang 103.
He has been employed by the Carrier for some 15 years. He
was notified by his Track Supervisor to attend a formal
investigation on January 10, 1991 in connection with:
"Your failure to protect your assignment as Foreman on Extra
Gang 103 on December 18 and 21, 1990."
Thereafter, Assistant Division Engineer advised the
Claimant as follows:
"This refers to formal investigation held January 10, 1991
to determine your responsibility in connection with your
failure to protect your assignment as Foreman Extra Gang 103
on December 18 and 21, 1990.
Based on the facts brought out in a formal investigation,
you are hereby assessed thirty (30) days actual suspension.
This suspense will start on February 4, 1991 and end March
5, 1991. You will be expected to protect your assignment on
March 6, 1991."
The transcript of the investigation was somewhat
revealing. It revealed that the date in the letter of
charge was wrong. After the payroll was reviewed, it showed
that the Claimant actually worked on Wednesday the 19th and
that on Friday the 21st he had come in extremely early and
that he had told Mr. Golliday, a Section Laborer in Gang
105, who, apparently, told Truck Driver John Anderson who in
turn told Supervisor O'Neil before 7:00 AM that the Claimant
P1, is
/740
-2- Award No. 134
was not going to work. The Assistant Division Engineer
concluded from the transcript that the Claimant was neither
guilty nor innocent but based on the facts brought out he
was going to suspend him for 30 days.
The worst conclusion that may be drawn from the record
developed was that the Claimant having been given the
instructions on December 20 failed to follow the stricture
of those instructions and as a Foreman he should be well
aware. The Claimant's 30 days is deemed to be excessive,
the punitive, and it is reduced to five days.
The Claimant received the due process to which
entitled. The Carrier had abused its right to discipline
and the discipline was modified accordingly. In fifteen
years of service, the Claimant had only one incident for
which he served time, five days for failing to protect his
assignment. Here the Claimant, for reasons best known to
him, had complied with the spirit but not the letter of the
required procedure.
Award: Claim disposed of as per findings.
Order: Carrier is directed to make this Award effective within
thirty (30) days of date of issuance shown below.
~rsvrnBxm,
T. A. ammon-F r., Lmp I oyee~ i e , r. r r Member
/ J~
Arthur T. Van Wart, Chairman
and Neutral Member
Issued
January 21, 1993.