Brotherhood of Maintenance of Way Employes Division- IBT Rail Conference
-and-
Delaware ad Hudson Railroad Company d/b/a Canadian Pacific Railway
Award No. 51
Case No. 51
Carrier's File 8-00983 OHR
I. The discipline [five (5) day actual suspension] assessed to Mr. M. Thompson by letter dated April 17, 2014 for alleged violation of Track Inspection Requirements, CP Red Book Sections 4.1. l and 4.1.2 and FRA 213.53 - failure to identify wide gauge was arbitrary, capricious and without just or sufficient cause and constituted a violation of the Agreement.
2. As a consequence of the violation referred to in Part 1 above, we request that the discipline decision be reversed and Claimant M. Thompson be made whole, including all straight time and overtime hours lost or denied as a result of the discipline.
This Public Law Board 7357 finds that the parties are Carrier and Employee, within the meaning of the Railway Labor Act, as amended, and that this Board has jurisdiction.
By letter dated April 17, 2014, the Claimant, Mr. Michael Thompson was notified by the Carrier that he was assessed a 5-day suspension, to be served as follows:
Dear Sir:
As a result of the facts developed at the formal investigation hearing, Monday, March 3151, 2014 you have been found failing to comply with Track Inspection Requirements, in violation of CP Red Book Section 4.1.1 & 4.1.2 and FRA 213.53 - failure to identify wide gauge.
Award No. 51
Your record has been assessed with a 5-day suspension to be served. This
suspension will begin on April 28n1
work the date of May 5th, 2014.
to May 2na, 2014 with an expected return to
s(fodd Dragland - Division Engineer - NEUS
The Organization appealed the discipline, and the matter has been progressed to this Board for adjudication.
No basis exists to set aside the discipline in this case on procedural grounds.
The Carrier has the burden of proof in this matter of discipline. After study of the entire record we are compelled to conclude that the Carrier has not established that Mr. Thompson failed to comply with Track Inspection Requirements, in violation of CP Red Book Section 4.1.1 & 4.1.2 and FRA 213.53 - failure to identify wide gauge. The Carrier has not provided substantial evidence of record to suppo1t the assertion that Mr. Thompson failed to take accurate measurements during inspection of Track IO on Febrnary 21, 2014, resulting in his failure to identify the out of service deficit of a wide gauge, in violation of the rules as referenced above. To the contrary Mr. Thompson testified that he properly inspected the track And, heavy train traffic moved across Track I0, a main track in the Kenwood Yard between the date the track was inspected by Mr. Thompson and when the FRA inspection occurred on February 17, 2014. He shall be made whole of all time lost and the discipline expunged from his record.
AWARD
Claim Sustained.
ORDER: The Carrier is required to comply with this award within thirty days.
Dated:---12-/7-/17--------