PUBLIC LAW BOARD NUMBER 3445
PARTIES TO DISPUTE
STATEMENT OF CLAIM
Award Number: 70

 Case Number: 70

 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

 And '
 SOUTHERN RAILWAY COMPANY

 Claimant, A.L. Cooley, P.O. Box 85, Vossburg, MS-39366 allegedly

 charged with Rule B GR-3, 99, 825, and MW-Standard procedure Rule 140., improper flagging,-at Hattiesburg, MS on February 8, 1989. Claim was . filed in accordance with Railway Labor Act and agreement provisions. Employes request that he be reinstated with pay for all lost time with vacation and seniority rights unimpaired.

 FINDINGS
Claimant entered the Carrier's service on March 24, 1979. At the time of the incidents in question, he was working near Hattiesburg, Mississippi.

 By letter dated March 3, 1989, Claimant was ordered to attend a formal investigation on charges that he, violated Rules B, GR-3, 99, 825 and Maintenance of Way Standard ProcedureVo. 140. The investigation was held
on March 10, 1989 at which time evidence was adduced which.led to Claimant's
 dismissal on March 28, 1989. -

 The issue to be,re~;olved in this dispute is whether Claimant was dismissed for just cause under the Agreement; and if not, what should the

 remedy be.


On,F~bkuary'`&,·',~- 159, Claimant, was assigned to,flagging duties with Gang TM=527 in''th& vacinity of the,c·Yo'ssing at·~ MP 85.4'.'~.flai:mant had worked as·a'~"·'.·'-,··.i, flagman in the past and had been instructed,regarding his flagging duties

 that day by Foreman,H.,T. Ray.,~Clamant also had_flapging equipment and a_·

 radio.- - · - _ . _ -

 As Train No..~19 approached the crossing, Road Foreman W.- L. Cottin- , gham, who was travelling by car,'tame upon Gang TM=527 at the crossing. -_ Cottingham had not seen Claimant.on duty and advised Gang TM.-527 to get -clear. It was unsafe for Train No. 219 to proceed through the crossing because there was neither ballast nor ties supporting the track at the time',

 only barerails and Cottingham was so advised. Suddenly, the train appeared and was bearing down on the bare track and the Gang= when. one member of the-
 Gang Gang flagged the train to a halt with a hard hat. The train stopped a mere - · '
 5 -car lengths from the crossing. ---- ~-

 Upon investigation, it was determined that Train 219 had encountered no torpedoes nor had the crew seen Claimant. Final-1y, Claimant appeared and,it was determined that he had been in the bushes relieving himself at the time, , the train passed his position.

    Rules B and GR-3 provide:


    Rule B Employees must be conversant with and obey the rules and special instructions. If in doubt as to their meaning, employees must apply to the proper authority for an explanation. If bulletin instructions conflict with,special instructions, the instructions bearing the later date will goveif,Y.' ,


    Rule GR-3 A11 employees must follow instructions from proper authority, and must perform all duties efficiently and safely.


            , i

,, .' 3yc-f5-70-

 Rules ,99-', 825,·and,,Maintenance of Way Standard) Ptocedures No. 140, found, in the record, are the precise rules and procedures for flagging.

    The position' of the. Carridr,is'that Claimant was" 'dismiss'ed for .just.

cause under the Agreement because Claimant failed to Putout torpedoes and
 flag as he was directed to do, and as is required by the rules. The.Garripr

 contends that thesc,lapses of performance have been prRven'conclusively..,. , ,__

                        , v

Claimant's failure of performance was extremely serious; but for the quick ' .
 thinking and flagging,of the train with the hard hat, the train might have · -
 derailed and the crew and the Cang injured. or killed in the process. , The ,, ·_'·'"·'ly;~ ,,,
 Carrier maintains that Claimant was negligent of his duties;.it asserts he

 should have ascertained the train's location before becoming indisposed.
 The Carrier argues that Claimant's failure of performaftcd'conktitutes;a
 violation of the cited rules and that the seriousness of the situation
                                      .


warrents dismissal.,

    As to the Organization's procedural argument, the Carrier maintains


that it was waived. - -

    The position of Lhu Organization is LhaL Claimant was unjustly


dismissed based on arguments as to procedure and on the merits. - _

 As to the procedural question, the Organization maintains that Claimant must be reinstated because the investigation of Claimant's alleged viola-

 tions was conducted More than 10 days after the written notice of the ,. ,-

 investigation as required by the Agreement. -
 On the merits, the Organization contends Claimant should not be found in violation because he was unfamiliar with the flagging procedures, did not have a rule book, may not have been qualified to flag and was confused as to the instructions he had received from Ray. The Organization also maintains that Claimant was unable to contacp Ray by. radio once the train got passed - Claimant. The Organization admits.that Claimant made a serious mistake, but contends that the dis0pline is not justified by the offense.

 After review of the entire record,

 properly 'dismissed ,unoer the Agreement.

 the Board finds that Claimant was,

    The Carrier has established by substantive credible evidence in the

record that Claimant was not. on duty as he was required to b.e, that he
 failed to praperly, perform his~flag11 ging duties..and that his nonperformance.*,
 nearly had. grave consequences. These negligent actions also constitute

 violations of the~several rules' related to flagging as well as the more general rules regarding following the rules and safe .performance of duties,'-'

 There is insufficient eyidence,in the record to support the contentiori'', that Claimant was unaware of his duties or how to perform them. He had flagged before and presented no credible evidence of genuine confusion or

 lack of capacity to perform the flagging job. Claimant was negligent of'hs · duties and it was only good fortune and quick thinking that saved lives and

 property.

 The serious nature of the offense warrants dismissal. The Carrier was.
 neither arbitrary,,~cal~,ricious'por'discriminatory. The alleged procedural violation.dj'dtnot, i6pailr the fundamental fairness of 'the proceedings and, in* light of the offense, and does not justify reinstatement.

 AWARD
Gluint LI.·ui(·cl,

 Date:

 34ciS-7o

 Neutral e er

 Carrier Member

 Organization Member