BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
 Case No. 164
 and )
 Award No. 158
 UNION PACIFIC RAILROAD COMPANY )

Martin H. Malin, Chairman & Neutral Member

T. W. Kreke, Employee Member

D. A. Ring, Carrier Member




STATEMENT OF CLAIM:









FINDINGS:
Public Law Board No. 6302 upon the whole record and all of the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given due notice of the hearing thereon and did participate therein.

 On November 19, 2007, Carrier notified Claimant to report for a formal investigation on November 28, 2007, concerning his allegedly releasing his track and time permit at 9:30 a.m. on November 6, 2007, while gang vehicles were still occupying the limits of the track and time. The hearing was held as scheduled. On December 7, 2007, Carrier notified Claimant that he had been found guilty of the charge and dismissed from service.



Employee-in-charge on Gang 5497 in the vicinity of Hermosa, Wyoming, testing number 2 main track between CPW 545 and CPW 549. Claimant released his track and time permit even though trucks remained on the track. Claimant realized his mistake and secured a new track and time permit from the dispatcher. In a statement given on the day of the incident and in his testimony at the hearing. Claimant admitted his responsibility. Carrier clearly proved the charge by substantial evidence.

 The critical issue is the severity of the discipline imposed. Our role is not to review the discipline de novo. We may only modify the level of discipline if we determine that it is arbitrary, capricious or excessive. In the instant case, considering all of the peculiar facts and circumstances, including that Claimant's mistake was a very serious act of negligence which could have led to serious personal injury or death, Claimant's eleven and a half years of service, Claimant's forthrightness in coming forward immediately and admitting his mistake, and Claimant's taking action as soon as he realized his mistake to correct the situation, we conclude that the penalty of dismissal is excessive. We award that Carrier shall reinstate Claimant to service with seniority unimpaired but without compensation for time out of service. As a condition of Claimant's reinstatement, he shall be disqualified from serving as Foreman until such time as he is approved by his manager to bid and attempt to requalify for a Foreman's position.

      Claim sustained in accordance with the Findings.


                        ORDER


The Board having determined that an award favorable to Claimant be issued, Carrier is ordered to implement the award within thirty days from the date two members affix their signatures hereto

                    Martin H. Malin, Chairman


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D. A. Ring T. W. Krek 4-e ~'s~ .zpD~'
 Carrier Member Employee Member

    Dated at Chicago, Illinois, June 23, 2009


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