SPECIAL BOARD OF ADJUSTMENT
PUBLIC LAW BOARD NO. 3729
CONSOLIDATED RAIL CORPORATION
"CARRIER"
-and- * CASE NO. 11
BROTHERHOOD OF MAINTENANCE OF * AWARD NO. 10'
WAY EMPLOYEES
"ORGANIZATION"
STATEMENT OF CLAIM:
Claim of the Brotherhood (CR-896-D) that:
(a) The Carrier violated the Rules Agreement,
effective February 1, 1982, particularly Rule
27, when it assessed discipline of dismissal
against Foreman James Taylor on July 17, 1984.
(b) Carrier's decision was arbitrary, capricious,
excessive, and not supported by the record.
(c) Claimant Taylor's record will be cleared
of the charge brought against him on July 13,
1984.
(d) Claimant Taylor be restored to service with
seniority and all other rights unimpaired and
compensated for all wage loss suffered as a result
of this dismissal.
This case arose when the Carrier charged J. Taylor, herein-
after the Claimant, with failure to properly protect a burro crane.
The specific charge, contained in a notice dated July 13, 1984, was
as follows:
PLB-3729 Award No. 10
Failure to properly protect Burro Crane #3117 on
the Eastbound Yard track in Amtrak Zoo Interlocking
on Wednesday, July 11, 1984 when you failed to insure the application of a temporary derail resulting
in Burro Crane #3117 and two push trucks rolling out
onto the #109 switch and derailing at approximately
9:18 P.M. on July 11, 1984.
The hearing was held on July 13, 1984. The Claimant was
present and represented by the Organization. Following the hearing,
the Carrier notified the Claimant that he had been found guilty of
the charge and assessed the penalty of dismissal. The above quoted
claim was then filed
on
behalf of the Claimant. By letter dated
August 17, 1984, the Carrier on the basis of leniency reduced the
suspension to time held out of service, 30 days. The Organization
rejected a reduction based on leniency and continued to process the
claim.
The Claimant is a foreman with 28 years of railroad service.
On July 11, 1984, the date of the incident giving rise to this
claim, the Claimant was responsible for tying down the burro crane
for the night. The Claimant went through certain procedures to secure
the crane for the evening but did not apply a derail. Later that
night the crane rolled and derailed.
POSITIONS OF THE PARTIES:
The Organization contends that the Carrier's decision was
not supported by the record and is arbitrary. The Claimant tied
down the crane on the night in question in the same manner as every
other night. The crane would not have moved and derailed where it
did unless someone tampered with it. Furthermore, a temporary
PLB-3729 Award No. 10
derail was not available for the Claimant to use.
The Carrier asserts that the record testimony establishes
the Claimant's guilt of the charge. As there was no evidence of
vandalism, the only logical explanation is that the Claimant did
not properly secure the crane. Additionally, the Claimant failed
to use a portable derail issued by the Carrier to secure the crane.
OPINION OF
THE BOARD:
The Board has decided to sustain the claim. The record
establishes that the Claimant, a long term employee with no past
history of carelessness, secured the crane in the normal fashion,
which did not include the use of a derail. Moreover, it appears
the crane could not have rolled to the position at which it derailed without vandalism or a switch change. Accordingly, the
claim shall be sustained.
AWARD:
The claim is sustained. The remedy shall be in accordance -
with Rule 27, Section 4 of the applicable Schedule Agreement. Monies
owed shall be paid within 30 days.
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SCOTT E. BUCHHEIT
Neutral Member
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ROBERT NEILL / J' P. CASSESE
Carrier Member Organization Member
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