PUBLIC LAW BOARD N0. 2960

AWARD N0. 19

' CASE N0. 16

PARTIES TO THE DISPUTE:
Brotherhood of Maintenance of Way Employees

and. .

Chicago and North Western Transportation Company

STATEMENT OF CLAIM:

1. The discipline (thirty [30] day actual suspension activating a thirty [30] day deferred suspension) assessed Assistant Foreman F. D. Clapp was without just and sufficient cause and unwarranted. (Carrier's File D-11-3-318)

2. Assistant Foreman F. D. Clapp shall be compensated for all wage loss suffered.

OPINION OF THE BOARD: On July 9, 1980, the Claimant was notified to attend an investigation to be held July 1, 1980, on the following charge:

"Your responsibility in connection with allowing speed swing to continue to work after Train No. 38 had been cleared on Form Y Train Order #211 on Thursday, July 3, 1980." Tile Carrier found the Claimant guilty and assessed a 30-day suspension in connection with the above charge and the Claimant was also required to serve an additional 30 days suspension which had earlier been assessed in the form of a deferred suspension. The merits of the 30-day deferred suspension was considered by 'this Board in Award 18. . After a review of the record, it is the conclusion of the Board that there is substantial evidence to support the charge. -It was established at the hearing that there are standing instructions issued in connection with the use of Form Y Train Orders for employees in charge such as the Claimant. The Claimant admitted at the hearing
that he was aware of the rules and that he had received instructions .' that there would be no working of machinery after a train was cleared in suburban territory. Mr. Perry, Project Engineer, testified he issued verbal instructions to that effect. The instructions concerning Form Y Train Orders were printed in the system timetable and are quoted below in pertinent part:

"Employee in charge will before granting permission to any

train or engine, the authority to proceed beyond a red flag

being displayed, ascertain that all work and activity has ceased

within the territor were the restriction applies an that

men an equipment under is jurisdiction are in a clear of

the track to be used or while working in a territory of two

or more main tracks that all activity aT s ceased a~n

are in e Fear.

The rule further requires that:

"Train and engine crews will, if they find men and equipment are not in clear of track to be used or that in.two or more track territory activit . as not cease an men an a ui ment are not in clear, ring t eir train to a stop, using a regularservice app ication, unless emergency application is warranted . . ." (Emphasis added.) As we read the rule above it is clear and unambiguous that an employee in charge of men and equipment will make sure that "all work activity" has stopped before a train proceeds through the work area. The Claimant admitted that a speed swing under his direction was operating when the train. approached. It is also undisputed that the engineer, . in compliance with the rule, brought the train to a stop when he saw the speed swing operate. It is clear based on the facts and his testimony that the Claimant is guilty. The.Organization defended the Claimant by arguing that there was no danger involved as a result of the operation of the speed swing. It was, although adjacent to track, being operated from
PLB-2960 3
AWD. N0. 19
CASE N0. 16
a road. They point to testimony of Mr. Perry which recognizes that
the equipment would not have fouled the track.
We are not impressed by the Organization's defense. The purpose
of the rules is to take every precaution reasonably possible to .
avoid accidents when trains are moving through areas where track
maintenance employees and equipment are working. The Organization
is essentially suggesting that the Claimant should not be disciplined
because his judgment, that the track would not be fouled was correct.-
The rule's intent, however, is to limit the exercise of such discretion.
The fewer discretionary judgments that are necessary in situations
such as this the lower the likelihood of accidents occuring. The
rule was made in the name of safety and it is reasonable. The Carrier
must have the right to enforce reasonable rules especially those
that are designed to prevent serious injury or property damage.
Regarding the qu tum of discipline, we are mindful of our role. It is our function to determine if the discipline is arbitrary or capricious. It is our opinion that 30 days actual suspension for this offense is not excessive. Therefore, this portion of the claim is denied. However, the discipline in this case activated a 30day deferred suspension. A portion of the claim is for recovery of loss of wages as a result. The instant decision in respect to this portion of the suspension must be read in context of our decision in Award 18. In that award, we found that the deferred suspension was unjustified. Therefore, it was improper for the Carrier to require the Claimant to serve an actual suspension in connection therewith. It is thereby ordered that the Carrier compensate the Claimant for all wages lost during the period that he was suspended in connection with the activation of the deferred suspension.
9-111 b a - 19

AWARD

Claim sustained to the extent indicated in the Opinion. Carrier ordered to comply within 30 days.

Vernon, airman

raw or , ar ier em er

DATE:

F-.-G. arper, Employee Member