SPECIAL BOARD OF ADJUSTMENT NO. 1049
AWARD N0.153
Parties to Dispute:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim:
Claim on behalf M. R. Jackson for reinstatement to service with seniority, vacation, and
all other rights unimpaired and pay for time lost as a result of his dismissal assessed
following a formal investigation held on October 11, 2005, concerning: 1) improper
performance of duties as a machine operator in connection with a collision between the
Anchor Machine RAM 8403 N, pushing an anchor cart, that he was operating and
Walking Spiker NS 8608 WH (striking one co-worker who in turn fell into another coworker and both falling down the embankment into a ditch); 2) failure to promptly report
the collision; 3) making false statements in a matter under investigation in alleging that
the collision was caused by mechanical problems with the Anchor Machine; and 4)
making false and conflicting statements in connection with his report of injury alleged to
have resulted from this collision on May 2, 2005.
(Carrier File MW-GNVL-05-05-SG-154)
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 May 2, 2005, Claimant operated an anchor machine and failed to stop within
one-half the range of distance because he was looking down instead of looking ahead. Consequently,
Claimant struck a co-worker and subsequently collided with the walking spiker that he was following.
The coworker fell into the walking spiker operator causing both to fall down the embankment and into
the ditch. The record further reflects that Claimant did nothing to report the incident to supervision, but
instead finished his shift and then went to the gang bus; had not a co-worker reported the incident, the
matter would not have come to the attention of supervision.
The record further reflects that Claimant made false and conflicting statements concerning the cause of
the collision. Claimant initially told his co-workers that the brakes had failed and that he fixed the
SBA 1041
A ctArd 15 3
problem by adjusting the brakes. Claimant later told supervision that the travel pedal had stuck.
However, a thorough inspection of the anchor machine by a qualified mechanic revealed no mechanical
defects.
Finally, the record reflects that Claimant maintained that he did not report the incident because no one
had been injured. However, Claimant told the Division Engineer that he had hurt his back when he hit
the plywood back of the operator's seat and that be had not struck any of the controls in front of him.
Subsequently, Claimant told the Supervisor that he had hurt his chest when he fell forward into the
controls. Claimant was transported to the emergency room where x-rays were negative. Claimant
offered no medical records documenting his purported injuries. The only medical records Claimant
produced related to his diabetes.
We conclude that Carrier proved all of the charges by substantial evidence. Given the seriousness of the
misconduct, involving safety violations and multiple acts of dishonesty, and given the aggravated nature
of the multiple acts of misconduct, we cannot say that he penalty of dismissal was arbitrary, capricious or
excessive. The claim is denied.
M. H. Malin
Chairman and Neutral Member
~2
D. artholomay D. L. Kerby
Organtion Member Carrier Member
Issued at Chicago, Illinois on October 30, 2006
rQ,g a ';.