NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD 6920
Kansas City Southern Railway Company )
MidSouth Rail Corporation/South )
Rail Corporation )
and ) Case No. 18
Award No. 18
)
Illinois Central Gulf Federation )
Brotherhood of Maintenance Way )
Employes Division, International )
Brotherliood of Teamsters )
STATEMENT OF CLAIM:
1. Carrier violated the current Work Agreement between the Kansas City
Southern Railway Company-MidSouth Rail Corporation/South Rail Corporation
and its employees represented by the Brotherhood of Maintenance of Way
Employees Division of the International Brotherhood of Teamsters when, on
September 18, 2009, it dismissed Claimant P. Henry from service.
2. As a consequence of the violation referred to in Part 1 above, Claimant should
be immediately returned to service and reimbursed for all wage loss sustained
and his record cleared of all charges.
Findings:
Public Law Board 6920, upon the whole record and all the evidence, finds that (I) the parties to
this dispute are Carrier and Employes within the meaning of the Railway Labor Act as amended,
(2) the Board has jurisdiction over this dispute and (3) the parties to this dispute were accorded
due notice of the hearing.
On September 11, 2009 an investigative hearing convened for the following purpose:
...to ascertain the facts and determine [Claimant's] responsibility, if any, in
connection with [his] alleged failure to operate [his] Hyrail vehicle in a safe
manner near East Brandon, Mile Post 80.5 on the Meridian Subdivision,
resulting in a collision with the rear of the Rankin Turn on July 29, 2009 at
approximately 1430 hours. At the time of this incident [Claimant was] performing
duties as a Machine Operator.
The AVP Engineering reviewed the investigative hearing transcript and dismissed Claimant from
service effective September 18, 2009 based on the violations itemized below.
General Code of Operating Rules
1.1 (Safety), 1.1.1 (Maintaining a Safe Course), 1.1.2 (Alert and Attentive),
1.3.1 (Rules, Regulations, and Instructions), 1.6 (Conduct), Rule 6.27
PLB NO. 6920
AWARD 18
2
(Movement at Restricted Speed), 10. I (Authority to Enter CTC Limits), 10.3
(Track and 'rime), 10.3.3 (Joint Track and Time).
Kansas City Southern System Special Instructions
1.6 (Conduct), 10.3.1 (Protection of Limits), 10.3.2 (Protection of Machines,
Track Cars or Employees), 10.3.3 (Joint Track and Time).
Kansas City Southern Maintenance of Way and Signal Department On-Track
Safety and Roadway Worker Rules
21.0 (Job Briefing), 21.1 (All Employees Must Ensure That They Receive A
Job Briefing Before They Foul Any Track), 22.1 (Follow On-Track Safety
Rules), 30.2.3 (Movement of On-Track Equipment), 30.5.1 (Operation and
Maintenance Instructions), 30.5.3 (Maintaining a Safe Braking Distance),
30.5.4 (Qualified Operators).
Engineering Rule Book
Job Briefing
STAR (Safe Through Awareness and Responsibility)
On November 10, 2009 the Organization filed a claim over Claimant's dismissal. The
Organization argues that Claimant has thirteen (13) years of service with no entries in his record.
BMWE recognizes the Carrier's concern with this infraction; however, instead of using discipline
to rehabilitate, correct and guide Claimant in the performance of his duties the Carrier arbitrarily
imposed a harsh punishment unrelated to the gravity of Claimant's infraction. The dismissal is
unjust and punitive when considering the totality of circumstances.
On January 15, 2010 the Carrier denied the claim. Claimant was grossly negligent in his
operation of the Hyrail vehicle by not carefully adhering to the rules. The claim, moreover, does
not contest the facts but only the penalty imposed. In this regard, the Carrier routinely issues a
dismissal when there is a Rule 1.6 violation. Thus, the dismissal was not arbitrary but consistent
with the Carrier's discipline policy.
On August 12, 2010 the parties met in conference without resolution of the claim.
Some of the rules cited by the Carrier as violated by Claimant are repetitive (Rules 1.6 and 10.3
to name a few) and, as such, lend an appearance of charge accumulation as in "piling on" rather
than showing multiple, distinct infractions. Nevertheless, this Board recognizes that careless
operation of the Hyrail is a grave infraction of rules such as Rule 1.6, Conduct. At the same time,
a 13-year employee with a clean record
of
employment is demonstrative of Claimant's ability
over an extended period of time to perform duties in accordance with the rules.
Other than the Carrier's routine application of its discipline policy to issue dismissal whenever
there is a Rule 1.6 violation, there is no indication in the record that Claimant's performance
deficiencies preclude or foreclose rehabilitation. The Carrier does not offer argument or
explanation addressing rehabilitation as an element for consideration when it determines the level
of
discipline to impose under its policy.
Based on the record established by the parties in this proceeding, dismissal is not proportional for
the Claimant's infraction. A suspension without pay for time removed from service is
proportional discipline for the infraction with restoration of seniority and benefits for Claimant.
PLB NO. 6920
AWARD 18
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Award
:
1n lieu of dismissal the Claimant is suspended without pay for time removed from service but
with restoration of seniority and benefits.
Kevin D. Evanski
Organization Member
Patrick Halter
Neutral Member
PLB 6920 Case No. 18
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