Claim on behalf of Engineer D.A. Darke, Jr., ID 198366, for the reimbursement of all lost earnings, commencing September 10, 1996, expunge all charges and discipline from personnel record, and the recovery of all vacation rights and privileges, as well as all medical and dental benefits lost, if any, resulting from investigation held September 17, 1996, in the conference room, Garrett yard office, Garrett, Indiana, to determine responsibility, if any, in connection with Train J00809 passing a stop signal without proper authority and subsequently shoving through a power switch on September 10, 1996. Discipline assessed: Thirty (30) Days Actual Suspension.
This Board fords the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended, and that this Board has jurisdiction over the dispute involved herein. The parties to said dispute were given due and proper notice of hearing thereon.
On October 10, 1996 Claimant was suspended for 30 days as a result of an investigation held on September 17, 1996.
A review of the transcript reveals Claimant was engineer of Work Train J00809. The train with 47 cars was being shoved approximately six miles when it ran a red signal and went through a power switch. Claimant was found to have violated Rules 414 and 266. Claimant was removed from service pending the investigation.
The Organization first argues that Claimant was improperly held out of service pending the investigation. It argues that the incident did not warrant such severe action by the Carrier, and there was no evidence the Claimant was an endangerment to himself, his fellow employees or the general public. Nor was the alleged offense such that it would likely lead to permanent dismissal.
On November 1, 1995 the Carrier issued an "Employee Performance Policy" which was revised November 1, 1996. The policy indicates that some employee behavior warrants immediate removal from service. However, under paragraph 4 of "Policy Exceptions" the policy reads:
The controlling collective bargaining agreement says engineers shall not be disciplined without a fair hearing. In cases of severe rule violations such as the use of drugs, alcohol, theft, gross insubordination, serious train accidents and criminal activities arbitration tribunals have held that employees may be withheld from service pending investigation. None of these circumstances apply in this case, nor was there any indication Claimant was endangering himself, the public or fellow employees.
The facts in this case show that while making the shoving movement the Claimant was given a restrictive signal notice by his conductor. Claimant continued to shove the train until it had run a red signal and went through a power switch. The fact was also brought out at the investigation that the conductor's radio failed. The Organization has cited a November 14, 1968 Agreement which reads in part:
However, the facts also reveal that the Claimant continued to operate the train after he saw the conductor on the ground walking along side the train. Rule 414 reads: