SPECIAL BOARD OF ADJUSTMENT NO. 1049
AWARD NO. 216
Parties to Dispute;
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim: "Claim of the System Committee of the Brotherhood that:
1. The dismissal of Claimant Eddie Huntley for the alleged violation of Norfolk
Southern Corporation's Operating Rule 814 in connection with his alleged failure to
stop his assigned backup Tamper ET-940165 short of stopped MARK VI Tamper
ET-09008J6J resulting in a machine collision at Mile Post 151.2H near Atlanta,
Georgia on March 2, 2010 was harsh and excessive and in violation of the Agreement
(Carrier's File MW-ATLA-10-07-SG-087).
2. As a consequence of the unjust dismissal(s) described in Part 1 above, Mr. Mofield
shall be made whole and restored to the service of the Carrier, with pay for all lost
time, seniority and vacation unimpaired."
Upon the whole record and all the evidence, after hearing, the Board finds the
parties herein are carrier and employee within the meaning of the Railway Labor Act, as
amended, and this board is duly constituted by agreement under Public Law 89-456 and
has jurisdiction of the parties and subject matter.
This award is based on the facts and circumstances of this particular case and
shall not serve as precedent in any other case.
AWARD
At the time of the events that lead to this claim, the Claimant was a machine
operator for the Carrier with over 20 years of service and was assigned to operate a
backup tamper machine near Atlanta, Georgia. On March 2, 2010, the Claimant's
machine collided with another machine at the worksite at a very low speed. After the
incident the Carrier began an investigation. At the investigation hearing, the Claimant
admitted that the collision occurred (although he described it as a "tap" and not a
"collision"). The Claimant stated the collision was from a simple error of judgment
regarding how much room he needed to stop the machine. The Claimant also admitted
that the incident was a violation of Operating Rule 814. As a result of its investigation,
the Carrier dismissed the Claimant for violating Operating Rule 814.
S.B. 1049
Award No. 216
The Carrier's argument in this case is that there is no dispute that the Claimant
failed to stop in time, and that failure to stop is a violation of a company rule of a
significant enough magnitude to warrant dismissal. The Carrier notes that the Claimant
admitted the violation and also admitted that the brake lights of the vehicle in front of
him were working and that the brake systems on his machine were working fine that day.
Given the circumstances, the Carrier maintains there was no justifiable reason for the
collision.
The Organization argues that while there is no dispute that the Claimant caused
the incident, the penalty of dismissal is unwarranted. In support of this argument the
Organization notes the Claimants otherwise excellent work record. Of particular note in
the Organization's argument against dismissal is SBA 1049 Case 200, in which both the
Organization and the Carrier were involved previously. In SBA 1049 Case 200 the
Claimant fully engaged brakes but caused a collision of significant damage, and in the
investigation the Claimant admitted that the collision was due to a momentary lapse of
concentration. The Board in SBA 1049 Case 200 ruled that the dismissal penalty was too
severe and reinstated the Claimant without back pay and with a forfeiture of seniority. In
the present case there is no dispute that the Carrier has proven the Claimant to be guilty
of Rule $14, but the question is whether the dismissal penalty is appropriate given the
circumstances. Although SBA 1049 Case 200 is not considered a precedent, the Board
notes a material similarity between the cases which lends credence to the argument that
the penalty of dismissal was disproportionate given the type of rule violation that
occurred.
The Claimant clearly failed to stop in this case, and the Carrier correctly has
charged him with a rule that the Claimant admits was broken. Concurrently, we must
consider several mitigating factors. The Claimant has an extensive record of service with
the Carrier, over 20 years of seniority without any other notable incident in his work
record. The Claimant took full responsibility for the incident. The damage caused by the
collision was very minor, and no one was injured. Considering these facts, the Board
finds that the dismissal of the Claimant was excessive. Further, given the circumstances
of the case and the notable seniority of the Claimant, the Board finds the time between
removal from service and reinstatement to be extraordinary and unusual. An effective
suspension of one year is sufficient enough discipline in this case. As such, the grievant is
to receive back pay for any time greater than I year of suspension (March 2, 2010
through March 2, 2011). Thus, we award back pay beginning from March 3, 2011 until
the date at which the Claimant is reinstated.
After thoroughly reviewing and considering the record and the parties'
presentations, the Board finds that the claim should be disposed of as follows: The
grievant shall be reinstated with all seniority, and shall receive back pay from the date of
March 3, 2011 until his date of reinstatement.
The claim is sustained in part.
S.B. 1049
Award No. 216
l~l l -r.
M.M. Hoyman
Chairperson and Neutral ember
T. Krel(e D.L. Kerby
Employee Me er Carrier Member
Award Date:
