Brotherhood of Maintenance of Way Employes )
Division - IBT Rail Conference )
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And )
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Norfo lk Southern Railwa y Co mpany (Former )
Case o. 85 Award No . 85
N_o_rfol_k &_W_est_ern_Ra_ilw_ay _Co m_pa_ny_)
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Richard K. Hanft, Chairman and Neutral Member
.J e d Dodd, Em ployee Member
D. L. Kerby, Carrier Member
STJ\ T EME NT OF CLAIM:
''C la im of the System Committee of the Brotherhood that:
I. The Carrier' s discipline [thirt y (30) days actual suspensio n] of Mr. R. Shelby, issued by lette r dated October 18, 2011, in connection with his alleged improper performance of duty in that on August I 6 , 20 11, it was discove red that Yard Cleaner YCC9730 I that he was assig ned to operate collided with Jet Snow Blower .JSB008 , ca using signi ficant damage to the Jct Snow Blower on or about July 5, 20 11, also, in connection with his a lleged conduct unbecoming an emp lo ye in that on August 16, 2011 , he provided false and/or misleading information in a matter under investigation when he was questioned about the aforementioned collis ion was unwarranted (Ca rrie r' s File MW-DEAR-11-47-LM-320 NWR)
2. As a consequence of the violation referred to in Part I above, Claimant R. Shelby shall be exonerated of the charges and compensated as time worked for all wages he should have worked during the thirty (30) day suspension."
FIN DINGS :
Public Law Board 6394 , upon the whole reco rd 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 juri sdictio n over the dis pute here in; and, that the parties to the disp ute were given due not ice of the hea ring thereon and did participate therein.
Public Law Board No. 6394
Award No. 85
This Award is based on the facts and circumstances of this particular case and shall not serve as a precedent in any other cases.
After thoroug hly review ing and considering the record and the parties' presentations , the Board finds that the claim should be disposed of as follows:
On August 16 , 2011 it was discovered that a jet snow blower stored on Track 11Yi at the Elkhart, IN yard had susta in ed damage. Inspect ion of the equipment showed that there was yellow paint on the nose of the snow blower, that its canvas cover had been torn and that there were relat ively fresh gouges in the snow blo wer' s metal. A subsequent inspect ion of Yard Clea ner YCC 9730 showed scraped yellow paint and shredded canvas on the knuckle of the machine . Cla imant is the only employee authorized to operate the Yard Cleaner.
Cla ima nt was summoned to a formal investiga tion that took place on October 13, 2011. By lette r dated October 18, 2011, Claiman t was notified that he had been found guilty of imp roper performance of duty in that on August 16, 2011 it was discovered that the yard cleaner Clai mant was assigned to operate collided with the snow jet blower causing signi ficant damage to the snow blower and providing false and misleading information regarding a matter under investiga tion when he was questioned about the co llisio n.
The Board's review of the record developed on the property indicates beyond a doubt that an im pact occurred wherein the yard cleaner came into contact with thesnow blower. Moreover, the preponderance of evidence points to the Claimant as the individual who was operating the yard cleane r when the collision occurred.
While the preponderance of evidence leads to the conclusion that a collisio n occurred between the two machines, there was not enough credible evidence on the record to prove that Claim ant was aware of or tried to cover up either the collis io n or the resulting damage.
Based on the credible ev idence on the reco rd that a collision occurred causing damage to the jet snow blower. the improper performance of duty charge is found to be supported by the record evidence. The charge that Claimant provided false and/or mislea ding informatio n in a matter under in vestigatio n is not supported by the record evidence and has not been proven by substant ia l e vidence. Thus, the discipline assessed on the property is excessive for the vio la tion proven.
The Carrier is directed to reduce the discipline assessed in this matter to a ten (10 ) day suspension and make the Claima nt whole for all time out of service.
Public Law Board No. 6394
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Richard K. Hanft. Chairman
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cd Oodd. F.mploycc Member O. L. Kerby. Carrier Member
Oated at Chicago. Illinois . February 3. 20I8
