BEFORE PUBLIC LAW BOARD NO. 1837
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
AND
NORFOLK & WESTERN RAILWAY COMPANY
Case No. 68
STATEMENT OF CLAIM: Claim of the-System committee of the
Brotherhood
1. The ten-day suspension and disqualification of
Foreman J. J. Bainter and the forty-five day
suspension assessed Machine Operator J. P. Traub
was without just and sufficient cause, on the basis
of unproven and disproven charges, in violation of
the Agreement and an abuse of Carrier's discretion.
(Files MW-MUN-83-52 (A) AND MW-MUN-82-23 (C))
2. Claimants J. J. Bainter and J. P. Traub shall
be allowed the remedy prescribed in Rule 22 (E).
FINDINGS:
Claimant J. J. Bainter was employed by the Carrier in the
capacity of foreman and Claimant J. P. Traub was employed by the
Carrier in the capacity of machine operator.
On May 26, 1988, the Carrier notified the Claimants to
appear for a formal investigation in connection with the
following charges:
. . . to determine your responsibility in
connection with your violation of General Safety
Rules GR-17, 1020, 1170, and 1209 of the Norfolk
Southern Safety and General Conduct Rules in that
J. P. Traub sustained a personal injury on May 13,
1988, while attempting to lift a hydraulic cylinder
and slipped on a chain guard lying in the catwalk
of Tamper ET 8609.
After two postponements, the hearing took place on August
22, 1988, and was continued to September 1, 1988. On September
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15, 1988, the Carrier notified Claimant Traub that he had been
found guilty of all charges and was assessed discipline of
forty-five days actual suspension beginning August 14, 1988, and
ending September 27, 1988. The Claimant was instructed to return
to work on September 28, 1988, and to schedule his company
physical. On September 15, 1988, the Carrier also notified
Claimant Bainter that he had been found guilty of all charges and
was assessed discipline of ten days actual suspension and was
disqualified from positions of foreman and/or assistant foreman.
The ten-day suspension was to begin September 19, 1988, and end
on September 28, 1988. He was also advised to protect his
assignment on September 29, 1988.
On November 2, 1988, the organization filed a claim on each
Claimant's behalf, challenging the discipline of each Claimant.
On November 9, 1988, the Carrier offered to adjust Claimant
Traub's discipline, but the discipline of Claimant Bainter would
stand. The organization declined the offer on December 27, 1988,
and this matter came before this Board.
This Board has reviewed the evidence and testimony in this
case, and we find that the procedural objections raised by the
organization are without merit.
With respect to the substantive issue, this Board finds that
the two Claimants were guilty of the rule violations with which
they were charged. Claimant Traub's injury was directly related
to the violations of Rules GR-17, 1020, 1170, and 1029. Claimant
Bainter was also guilty of the rule violations because, as the
foreman, Claimant Bainter had the responsibility to make sure
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that Claimant Traub performed his work in accordance with the
rules.
Once this Board has determined that there is sufficient
evidence in the record to support the guilty finding, we next
turn our attention to the type of discipline imposed. This Board
will not set aside a Carrier's imposition of discipline unless we
find its action to have been unreasonable, arbitrary, or
capricious.
With respect to Claimant Traub, there is no question that
the discipline issued to him was reasonable. Claimant Traub's
record contains an extraordinary number of safety rule
violations, some of them for the same safety rules that were
violated here. Claimant Traub had previously been suspended for
ten days and thirty days shortly prior to the incident in
question. Therefore, with respect to Claimant Traub, this claim
must be denied in its entirety.
Claimant Bainter's case is a somewhat different situation.
First of all, Claimant Bainter's record is not as bad as Claimant
Traub's record. Also, Claimant Bainter's culpability in the
present incident is not as severe, and that is presumably why the
Carrier issued him only a ten-day suspension. This Board has
thoroughly reviewed the record, and we cannot find any reason why
Claimant Bainter should have been permanently disqualified from
the position of foreman and assistant foreman. Certainly, he was
deserving of the ten-day suspension and a temporary
disqualification. Therefore, this Board hereby orders that the
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ten-day suspension shall stand and the disqualification shall
stand, but it shall end upon the issuance of this award.
Claimant Bainter's previous record and long service are
sufficient to afford him another opportunity as serving as
foreman or assistant foreman.
AWARD:
The claim regarding Claimant Traub is denied. The claim
regarding Claimant Bainter is sustained in part. The ten-day
suspension of Claimant Bainter is upheld and the disqualification
of Claimant Bainter sherminate upoyi the issuance of this
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award.
PETER EYER
Neutral M mb
Carrier Membe~
Dated: /yp~-i l
ganization Mem3