Award No. 1

Martin H. Malin, Chairman & Neutral Member

P, K, Geller, Employee Member

N1.1. Kovacs, Carrier Member




SSTATEMENT OF CLAIM:









FINDINGS:

 Public Law Board No. 1466, upon the whale retard and x11 flue evidence, finds and holds that Employee and Carrier arc employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Beard 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 April 3, 3002, Carrier notified Claimant to appear far an investigation on April 92 2002, concerning his alleged violations of Track Safety Rules 100, 300, 400; 500 and 902, in connection with an incident on March 27, 2002, when he was allegedly fouled Main Track No. 2 without proper authority. The hearing was held as scheduled. (fin April 26, 2002, Carrier notified Claimant that he had been found guilty of the charges and assessed a thirty day suspension, and disqualified as a Track Foreman for one year. Carrier subsequently reinstated Claimant's Track Foreman's rights effective July 1, 2002.

 The record reflects that an March 2'7, 2002, Claimant and two Trackmen were clearing snow from a switch when one of the Trackmeu noticed a pull-apart on the main line. Tire employees prepared to use a controlled bum to repair the defect, Claimant was responsible far
 ?qe,e ;L

 getting track authority. Claimant contacted the Dispatcher and advised the Dispatcher that his location was MP 110;97 and that he and his craw would he working west of McKinley. In fact, Claimant and his crew were working east of McKinley. As a result, the Dispatcher phased a block vest of McKinley between McKinley and South Bend instead of blocking the track whore Claimant and the two Tracktnen were working. Because the track where Claimant and the two Trackman were c=orking was trot blocked, Train 761 came through. The three employees wore able to run out of the way of the train and no one was hurt.

 The record thus reflects that Claimant gave the Dispatcher inaccurate information. Furthermore, the record reflects that Claimant failed to write dawn the track and the time that the track eras taken out of service. Both actions were acts of serious negligence that could hays led to catastrophic results. We conclude that Carrier prayed the charges by substantial evidence.

 The Organization objects to Carrier's having withheld Claimant from service pending investigation. We do not agree. Claimant's negligence was a very serious violation of Carrier's safety tiles. Carrier acted within its rights by withholding Claimant. From service.

 The Organization objects that the Dispatcher was primarily at fault and Carrier did not withhold the. Dispatcher froth service. The Dispatcher was contrihutori3y at fault because the Dispatcher did not check Claimant's location against his maps. Had he stone so, he would have seen that Claimant was east of McKinley, not west of McKinley, However, the Dispatcher's negligence does not excuse Claimant's negligence. The record reflects that the Dispatcher was disciplined, although lee was not withheld from service pending investigation, The Dispatcher, however, was a member of a different craft and subject to a different Agreement. We cannot say that Carrier's failure to withhold the Dispatcher from service invalidated its withholding of Claimant or the ultimate discipline assessed against Claimant.

 Viewing the record as a whole, and in light of the seriousness of the safety title violations. we cannot say that the penalty imposed was arbitrary, capricious or excessive. Accordingly, the claim mast be denied.

 Claim denied.

 M. J. Kovacs P. K, Geller
 Larder Member Employee Member