1. That the Carrier violated the Agreement when on May 3, 2000, Mr. 8. J. Tom. was dismissed frost tile Carr·.r's service for his alleged violation of Rules 1.1.3, 1.1 and 1.1.1 of the Engineering Instructions; Rules 6.3 and 1.20 of the Maintenance of Way Operating Rupees Effective January 31, 1999 as revised; and violations of Rules 3=1.1.1 and 8.1.8 of tire Maintenance of Way Safety Rules as revised; in conjunction with an on-track collision between backhoe X-3200593 and Amtrak Rio. 4 on March 21, 2000.
2. As a consequence of the Carrier's violation referred to above, the Claimants shat! be reinstated to service with seniority, vacation, and all other employment rights unimpaired end paid for ail wage loss commencing April 11, 21380 Ethe date the Claimant was withheld from service] and continuing forward.
Upon the whole record and all the evidence, the Board finds that the parties herein are carrier and employee within the meaning of the Railway Labor Act, as amended. Further, the Board is duty constituted by Agreement, has jurisdiction of the Nz:*:zz a^d of the subject mater, and the parties to 'tf!3 aisputs wera giron dug nor: of the hearing thereon,
Amtrak train that had Claimant's permission to advance through Form B territory. No one was hurt. Pago, 2" Award No. j (' 1
An Investigation was scheduled, following which tha Carrkrr on May 3, 2000, wrote Claimant advising him that h* was dismissed from Carrier's service for his violation of certain Rules.
Amtrak struck the backhoc when the operator, who had been Instructed to proceed on an adjoining right away to a crossover then move to the far side of the track, found his way blocked and knowing the tracks were under Form 5 protection, tried to cross the tracks. Because the tracks were wet he could not get out of the track once he got In. Fortunately, he noticed other gang members waving frantically, saw the approaching train and ran for cover.
There exists no controversy concerning Claimant's culpability for the charges assessed. He admitted he neglected to advise the backhoe operator of his action of allowing Amtrak to proceed through the territory and this was fully supported by the backhoe operator who testified he was never told about the Amtrak train.
Corc*ming the d1scipline, however, the Soard hoeven the assessment of dismissal to a veteran employee who, when he was discharged, was just five months shy of 29 years with only one minor disciplinary action err his record was done without consideration of this record.
the life of fallow employees, yet no one was hurt in this Instance. it Is further evident that this ways just a lapse in memory and not a result of a deliberate act.
The Organization on the property protested the severity of the discipline and furnished evidence of another employee who waived an Investigation and received a 20 day doforred suspension when he put his vehicle on the wrong track only to have It destroyed by a train. The Carrier argued, and correctly so, that there Is no basis upon which to compare the two disciplines - I.e., dismissal verses 20 day deferred, as each incident and resulting discipilne must dotermlrled Individually. However, Claimant's rear 29 years of relatively discipline-free service has to be given consideration just as a tied record would be considered.
Under these circumstances, Claimant is to be returned to service with alt his seniority rights intact, without any pay for time lost.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Ciaimant(s) be made. The Carrier Is ordered to make the Award effective on or before 30 days following the date the Award Is adapted.
The disqualification occurred at the close of business on January 12, 2001. The disqualification letter had one line relative to his disquastication and that read, as follows:
the Organization, during the hearing, protested the vagueness of the disqualification letter, and this hoard has to agree. What were the speclttcs?
The only two instances that were brought forth wee an alleged jack rabbit start and a one-time incident of rolling through a stop sign. The Carrier disc not sail as a witness anyone who rode with Claimant, but solicited testimony solely front a Roadr»aster who had newt ridden with Claimant but kept referring to claimant's unsafe driving, the uneasiness of his Foreman (who was no longer employed by the Carrier as of the date of the Investigation) with ClalmanYs driving skills.
Contrarily, Claimant stated that since he commenced driving for the Carrier, he has driven a dump truck, more than one super size crew truck and others, all with but one Incident and that was when he went to drive through some water which was deeper than was thought, For this he received a 30 day suspension, but he was not disqualified. This act was handled to a conclusion by the Carrier and should have no bearing on his disqualification.
Besides the water incident which was brought out in the Investigation, the Carrier also related to the time apparently occurring shortly before the disqualification wherein the truck was struck by a yard engine. This incident was thoroughly Investigated and no charges were tiled. Evidently, no fault in operations were found.
