PUBLIC I.pH BOARD No. 2016

Award No. 1

Case No. 1

Parties Tine Texas Mexican Railway Company
to and
Dispute Brotherhood of Maintenance of Way Employees
Statement Prior to his dismissal, Claimant Aquilar had been in the service of this
of Claim: Carrier sow 35 years. On December 7, 1976, Claimant Aquilar was working
as Section Foreman on Extra Gang No. 3.
Findings: The finds, after hearing upon the whole record and all evidence, that the
parties herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, that this Board is duly constituted by Agreement
dated August 23, 1977, that it has jurisdiction of the parties and the
subject matter, and that the parties were given due notice of the hearings . .
held.
Claimant was working as Section Foreman on Extra Gang No. 3 on December 7,
1976. He received the following letter on Decetmer 8, 1976:
"On leer 7, 1976, a taming machine under your supervision was struck
by Train No. 7.
You are hereby reroved from the service of the Texas Mexican Railway Company
for violation of the following rules of the Rates and Regulations Governing
Employees of the Maintenance of Way and Structures Departrrentc
775.1 954
'IM 817-A
TM 43
sA9. J. Standridge
Roadmas ter"
A hearing was requested and granted as a result thereof. Claimant was
adjudged guilty and advised that he was dismissed from service for viola- -
tion of the cited rules.
The function of this Board is to act as anappellate body to determine

whether due process as provided in the Agreement %...-as accorded the Clai,-rt-

ant, whether sufficient evidence was adduced to support Carrier's con- -

clusions and whether the discipline i-,7,,osed was unreasonable.

`n- ere rare no procedural errors toLar the Board's review of the case on its MritS.

' -2- Awaza No. 1 - a ol to

The Board finds that there was sufficient competent evidence adduced including Claimant's admissions of Rule violations to support Carrier's conclusions as to Claimant's culpability. 2ne transcript reflects that Claimant Foreman was in charge of three Maintenance of Way on-track equipment and their cre:vs, one of which .;advnes, the Electro Tamping Machine, was struck by Train No. 7. Train No. 7 usually passes through the area where this M of W gang was working before said gang starts to work. On Lecerber 7, 1976, because of the Hours of Service law, said train was running late. Claimant testified that he received a train line-up, that he assumed Train No. 7 had passed through his area, and that he therefore had not provided flag protection for the machines working under his jurisdiction. Claimant admitted that he had violated Rule 954.

An admission of guilt leaves only the question of the discipline to be assessed for Claimant's negligence. Claimant's service record indicates _ that this is the third serious offense-. Claimant Foreman was dismissed as- --_ such August 15, 1972, for leaving the east main line switch at Clarkwcod aligned and locked for the siding instead of the Main Line. He was again dismissed, July 30, 1975, for raising the main track near Clarkwood four and one-half inches too much within one rail length. Despite reflections of Claimant's poor judgrrpnt as a Foreman, Carrier offered to reinstate Claimant on a leniency basis as a track laborer only with his seniority and other rights not otherwise impaired. Claimant declined to accept this offer.

The Board, in consideration of the fact that Claimant has 35 years of faithful service, that he is only 56 years of age which means that absent a physical disability he is ineligible for retirement at this tine and that this record does not perlat the Board to reinstate Claimant as a Foraran, will reinstate Claimant as a track laborer with all seniority as a laborer vacation and other rights unimpaired.

Because the decision rests solely with Carrier, the Board recommends to it that Carrier, sometir..e in the future, again review Claimant's record and give consideration to possibly using him as a Foreman.

Award: Claim disposed of per findings.

Order: Carrier is directed to make this A·.:ard effective within thirty 0) days

/ Oi '°~3te Of 155 j^0." S:~CS·1?1 below.

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