Public Law Board No. 3038 was established pursuant to the provisions of Section 3, Second (Publi· Law 89-456) of the Railway Labor Act and the applicable rules of the National Mediation Board.
The parties, the National Railroad Passenger Corporation (AMTRAK, hereinafter the Carrier) and the Brotherhood of Maintenance of Way Employes (hereinafter the Organization), are duly constituted carrier and labor organization representatives as those terms are defined in Sections 1 and 3 of the Railway Labor Act.
After hearing and upon the record, this Board finds that it has jurisdiction to resolve the following claim:
The Claimant, T. J. O'Neill entered the Carrier's service on May 17, 1976 and is credited with railroad service from July 12, 1974. On March 9, 1982 he was assigned to the position of Assistant Foreman on the Carrier's Boston Division. As a result of an incident at Hamden Connecticut involving an accident with a Company vehicle he was operating, he was removed from his assignment as Assistant Foreman effective 7:00 a.m. March 11, 1982. The Claimant was, however, permitted to work a Trackman's position at his Assistant Foreman's rate of pay pending completion of an investigation to determine the facts regarding the incident on March 9, 1982. By notice dated March 15, 1982, the Claimant was notified to attend an investigation on March 19, 1982 in connection with the following charges:
present at the investigation accompanied by his duly authorized representative. Following the investigation the Claimant was assessed the discipline of "disqualification of Foreman and Assistant Foreman effective immediately". In the investigation General Foreman Kirner testified
Carrier Police Officer Kelly testified regarding his investigation of the accident which occurred in the vicinity of Evergreen Avenue and Anns Farm Road in the town of
Hamden, Connecticut on March 9, 1982; and, regarding the Hamden Police Accident Report which states that "Vehicle #1 headed eastbound on Anns Farm Rd. struck Vehicle #2 parked at the south curb forcing it into Vehicle #3 also parked at south curb. Vehicle #2 as forced over the south curb 8 feet and into a tree at 18 Anns Farm Rd. Vehicle #3 was forced forward and to the north curb 20 ft."
Foreman Gaudioso testified that he was Foreman of the gang identified as 5662 and that Claimant O'Neill was assigned to that gang. Mr. Gaudioso testified the assignment he received on March 9, 1982 was to patrol New Hven to Hartford. He stated he did not absent himself from his assignment on that date. He testified that his regular supervisor Kenny Sullivan has a standard practice for employees to patrol through Oakwood Avenue and through Hart Tower when time permits. He testified that the Supervisor's Assignment Log states "New Haven to Hartford Patrol" and this job, after patrolling was completed, involved a job of putting bolts in at North Haven Junction, which the regular supervisor, Sullivan, wished to have performed. Foreman Gaudioso further testified that when he and Claimant O'Neill arrived at Route 10 they noticed an employee stopped on the side of the highway. The employee was a female Carrier employee whose car would not operate. Foreman Gaudioso
PLB NO. 3038stated that they stopped and got the car started. He testified that, for reasons of safety, he drove the female employee's car to her house and that he was followed by Claimant O'Neill in the Hyrail car. Foreman Gaudioso stated that while he and Claimant O'Neill were returning to New Haven the Hyrail car was struck by an object and Claimant O'Neill, in reacting, struck a parked vehicle. Foreman Gaudioso further stated that he and Claimant O'Neill were on
further testified that he follow him in the Hyrail employee's car to her home.
Claimant O'Neill testified regarding the accident, and his testimony corroborated that .of Foreman Gauidoso. He further testified that he was cited by the Hamden Police Department for "Improper Passing". He stated that the purpose in following the disabled vehicle was to insure it arrived at its destination.
It is clear from the record that Claimant O'Neill was working under the supervision of Foreman Gaudioso and subject to his orders and instructions. Claimant O'Neill was in the company of Foreman Gaudioso during the entire incident. Foreman Gaudioso testified that he directed Claimant O'Neill to accompany him, specifically to drive the Hyrail car following Foreman Gaudioso to the home of the owner of the disabled car. Thus Claimant O'Neill was following and carrying out the instructions of his supervisor. He was neither absent from his assigned work location without authority nor "in an area not assigned to you" in as much as he was in the area at the direction of his supervisor. PLB NO. 3038
nt of the vehicle at
Board finds that
Gaudioso lacked