COMPANY CASE NO. 8-00355 derailment at or near that same location in late October, 2002. After it was determined that the repairs in question had been performed by Claimant and another Track Department employee under his direction and supervision, Foreman Radzikowski was served with the charges described in the Statement of Claim, supra.
Based on the transcribed record and exhibits from an investigative hearing at which Claimant appeared with BMWE representation, Carrier found him culpable as charged and assessed discipline of 25 demerits. The Organization perfected a timely appeal which is now before this Board for determination in arbitration.
The Organization at the outset asserts procedural violations in the Notice of Charges and conduct of the hearing. However, Carrier correctly points out that these belated allegations were expressly waived by Claimant and his Organization Representative at the conclusion of the hearing. As for the merits, Carrier demonstrated by a preponderance of the record evidence that the Claimant was the Foreman in charge with responsibility to insure the repairs were properly made. Rather than wait for the proper track material, he made the decision to make the material at hand work by grinding it to fit. That is an acceptable practice if done properly but Claimant put the switch back in service without properly grinding the stock rail to fit; without applying the number two bolt in the switch; and without tamping the switch head blocks. All of these defects in the repair performed/supervised by Claimant caused the switch point to not properly fit with the stock rail and resulted in the derailment on November 6, 2002. We cannot find that Carrier erred in holding Claimant responsible for the cited Rule violations nor is the penalty imposed for his proven misconduct so excessive, unreasonable or discriminatory as to warrant arbitral intervention.