SPECIAL BOARD OF ADJUSTMENT NO. 1049
AWARD NO. 124
Parties to Dispute:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim:
Claim on behalf of L. B. Butler for reinstatement to service with payment for all time
lost, and seniority and vacation unimpaired, as a result of his dismissal following a
formal investigation held on May 22, 2001, in connection with his improper performance
of duties as a Roadway Laborer on May 1, 2001, at milepost 579.8, near Red Lane,
Georgia, in that he used gasoline to start and/or stimulate a fire while attempting to
remove, by burning, a wedge from a hammer; and for persisting in unsafe work practices
for negligently subjecting himself to injury on three occasions and habitually violating
safety and operating rules as evidenced by the Claimant's prior service record.
(File MW-GNVL-O1-07-LM-143)
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.
This award is based on the facts and circumstances of this particular case and shall not serve as a
precedent in any other case.
AWARD
After thoroughly reviewing and considering the transcript and the parties' presentations, the Board finds
that the claim should be disposed of as follows:
Carrier proved the charges by substantial evidence. The record is clear that Claimant used gasoline to
stimulate a fire, an action that not only violated Carrier's Rules but also was extremely dangerous. The
remaining issue is whether the penalty of dismissal was arbitrary, capricious or excessive. Claimant was
counseled on at least seven occasions concerning his unsafe work practices. Such counseling concerned
such dangerous practices as using a cigarette lighter to light a torch and smoking around acetylene and
oxygen tanks.
Such counselings were not disciplinary in nature and had Carrier merely gone from counselings to
discharge we would be troubled. However, on September 25, 2000, Claimant operated a contractor's
front end loader without authorization. Claimant was unable to stop the front end loader. He not only
violated Carrier's rules, but he endangered the safety of himself and others. Claimant waived
investigation and received a five day suspension.
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The incident in the instant case occurred less than eight months later. The Board recognizes Claimant's
lengthy service with Carrier. However, Claimant has been counseled numerous times and has been
suspended. Moreover, Claimant's actions have involved deliberate conduct over which Claimant had
complete control. Despite Carrier's efforts to motivate Claimant to reform his behavior, he again
engaged in a deliberate and extremely unsafe act, i.e. using gasoline to stimulate a fire. We cannot say
that the Agreement requires Carrier to continue to run the risk of keeping Claimant in its employ.
The claim is denied.
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Chairman and Neutral Member
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D. artholomay - D. L. Kerby
Orgam tion Member Carrier Member
Issued at Chicago, Illinois on February 13, 2002