SPECIAL BOARD OF ADJUSTMENT NO. 1048
AWARD N0.132
Parties to Dispute:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim:
Claim in behalf of J.K. Shepherd for restoration of Foreman rights and pay for all time
lost as a result of his forty-five day actual suspension and disqualification as a foreman
following a formal investigation held on April 30, 2003, for improper performance of
duty as an assistant foreman in that on April 9, 2003, at Eller, Virginia, a bulldozer that
he was protecting was struck by a train.
(Carrier File MW-ROAN-03-20-LM-103)
Upon the whole record and all the evidence, after hearing, the Board finds that 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.
AWARD
After thoroughly reviewing and considering the record and the parties' presentations, the Board finds that
the claim should be disposed of as follows:
The Organization argued that Carrier did not afford Claimant a fair and impartial investigation because,
during the hearing, the Assistant Division Engineer who was attending as an observer, allegedly nodded
and shook his head while witnesses were testifying. However, the Organization failed to object to such
alleged actions while any witness was testifying. Rather, the Organization raised the alleged conduct at
the end of the hearing. By waiting until the end of the hearing, the Organization prevented the hearing
officer from addressing the objections at the time the allegedly objectionable conduct occurred; in so
ding, it waived the objections.
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The record contains substantial evidence that Claimant failed to position himself at a point where he
could see the operation of the contractor's bulldozer and that Claimant's failure to properly perform his
duties in this regard as employee in charge substantially contributed to the accident that occurred when
the bulldozer fouled the track and was struck by a train. Furthermore, given the seriousness of
Claimant's misfeasance, we cannot say that the penalty imposed was arbitrary, capricious or excessive.
Accordingly, the claim must be denied.
. Mahn
Chairman and Neutral Member
D. L. Ker
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by
Or am tion Member Carrier Member
Issued at Chicago, Illinois on October 19, 2004