SPECIAL BOARD OF ADJUSTMENT NO. 1049
AWARD N0.152
Parties to Dispute:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim:
Claim on behalf D. L. Wilson requesting that he be made whole and returned to service
with seniority, vacation unimpaired as a result of his dismissal from service following a
formal investigation held on October 20, 2005, for his responsibility in connection
improper performance of duties in providing on-track protection.
(File MW-ATLA-05-1 I -LM-345)
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:
The record reflects that on October 19, 2005, Claimant responded inappropriately and with profanity to a
request from a coworker to enlarge a hole he had dug to enable the coworker to use the circular saw to
cut out a rail. On October 2005, Claimant walked out of the morning safety meeting and refused the
Foreman's directive to return. Although Claimant denied this, these events were testified to by the
coworker and the Foreman and corroborated by other members of the gang. As an appellate body that
does not observe witnesses testify, we defer to credibility determinations made on the property. We find
that Carrier proved the charge by substantial evidence. Given the serious nature of the charge, Claimant's
short service and the absence of any mitigating factors, we cannot say that the penalty imposed was
arbitrary, capricious or excessive. The clai 's denie
M. H. Malin -
Chairman and Neutral Member
i~ ~ x~a6
D.~rtholoma~\ D. L. Kerby
Org a ion Member Carrier Member
Issued at Chicago, Illinois on October 30, 2006