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                        Docket NW-MOB-74-23


        Parties Brotherhood of Maintenance of Way Enployees

        to and

        Dispute Norfolk and iaestern Railway Canpany (Former Wabash)

        Statarnnt Claim on behalf of former Crane Operator P. M. Saunders

        of that he be reinstated to service with all rights

        Claim unimpaired and that he be compensated for all time lost

        as a result of an investigation held on December 21,

        1981.

        Findings: The Board, after hearing upon the whole record and evidence,

        Mxds that the purLio:; ln:rcin arc Carrier xuxl MiVloyec within ttx:

        meaning of the Rai.lway T.alxor Act, as amended, that this Board is duly

        constituted by Agreement dated February 2, 1976, that it has

        jurisdiction of the parties and the subject matter and that the

        parties-were given due notice of the hearing held.

        Claimant, a Machine Operator with 13 years service, was notified by the Division Enginmrs-Construction, under date of January 8, 1987.:


              "Ru::uils ui i::vu::;iy<_ti<x: :wild i.:: t~nis ula:iCa Dcher 21, 1981, det6ermining your responsihi 1 i.ty in c..cxmevtion with ycxu- ) x:ing on carpany properly Decen7ber 4, 1981, in an intoxicated condition at which time you exhibited conduct unbeccxaing an enp.1oyce in violation of Rulc G and Rule 1712 of Norfolk and Western Railway Company's Safety Rules and Rule of Ck·:x·-ral Conduct, clearly substantiated your responsibility.


              Accordingly, you are lu:reby di.sini.sa~,d Lrcr, all further service with the Norfolk and D~lestern Railway Canpany effective with date of Decanber 7, 1981, this being the date you were removed from service for. these violations.


                            /s/ J. E. Trick

                            Division Engineer-Ccnstruction"

P, E 2 121,6 idea - Award No. ss ,

                                                      9


The Employees instituted an appeal therefrom on February 1.1, 1982. The initial appeal was denied. After it was handled in the usual manner and resulted in no change in the: adverse decision, the rbq)loyces appealed said Case to this Hoard.

The record reflects that, subsequently, Claimant, on his own initiative instituted a proceeding in another forum, to wit - The Missouri Camrission on llunian Rights. A .SettlcmC`nt Agrearent, in Qrsc·. Nuaber E-2/82-2443, was reached between the parties thereto, i.e., Claimant` and Carrier signed April 27, 1983 and May 6, 1983, respectively, as the Carplainant and the Respondent. The part thereof pertinent read:


        "2. in exchange for the promises of Ccxrplainant and the ~lisacxr.r.i Ccxmd:%dom on Human Riclhl-s contiincd in paragraph 1 of taiia agrex~rtent, Pcspondcnt agrees:


              a. Not. to discrirrunate against any person because of opposition to any practices forbidden under Chapter 296 RSib, 1978 or because of filing a complaint, testifying or assisting in any proceeding under the law.


              b. Carplairuant will enter Respondent's Alcohol Rehabilitation Services Program and at the tine Canplainant successfully completes said program and upon tire recommendation of Ceaq)lainant'c: e~xm:.xlle~r, Cuqplaintint will ix: inzxr--Jiatcly returned to duty in a =qxirahle job in the same <~niority district. wi t.lr all rights uninpuixed, subject: only to passing the usual physical examination.


        3. '115 Scttlcsrrnt Agrcxairlrt stall ofxxrate as the ecnplete and final disposition of said complaint, subject only to the fulfillment of the foregoing provision."

It is a riiatter of carrmn sen:-:c and sound labor rclaticxrs E:clicy, as well as a·general legal, arbitral and public principle, that unnecessary or frequent litigation and/or forum, shopping should be discouraged.

'. Page 3

 PLr3 lfteo - Award No. 55

Otherwise, among other things, a Canplainarit would be permitted "more than one bite of the apple".

In the instant care the discipline imposed was cumulative in nature. It included therein the lesser included offense charged against Claimant.

Claimant's action and agreement in the settlcamni: cited hereinabcwe is deemed to have made the instant case moot. He therein agreed that he has a "prcblen" and agreed to the means as to its possible resolution.

Consequently, the instant case will be dismissed without prejudice to the respective positions of the parties.


AWAIT: Case No. 55, as per findings, is dismissed without prejudice to UK: position:: mf ilx.·. purLies.


M. K.°C'hrisi.i , loyeeeiiitx:r

      Arthur 'P. Van Wart, Chairmen and Neutral Member


Issued June 27, 1984

Sr, 441U- ) -


S. C. Lyons, Cirri