SPECIAL BOARD OF ADJUSTMENT NO. 1049
AWARD N0.183
Parties to Dispute:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim:
Claim on behalf of J. L. Pugh requesting that he be paid for all time lost as a result of his
dismissal following an August 20, 2007 formal investigation concerning improper
performance of the duties of a Machine Operator in that the Mark III Tamper that he was
operating collided with a tractor trailer at the Thomasville Lumber road crossing on July
23, 2007.
(Carrier File MW-BHAM-07-12-LM-310)
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 89456 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 record reflects that Claimant was tramming his Mark III Tamper from Thomasville, Alabama to
Lamison, Alabama. As Claimant was approaching the Thomasville Lumber crossing, he slowed because
he saw a forklift on the crossing. Claimant observed a lumber truck that appeared to be parked by the
crossing. Claimant increased his speed after the forklift cleared the crossing. The truck then moved into
the crossing but Claimant was unable to stop and struck the truck in the crossing.
Rule 815 requires that on-track equipment approaching a crossing be prepared to stop short. Claimant
admitted that he did not comply with Rule 815. Carrier clearly proved the charge by substantial
evidence.
We turn to the penalty assessed. In reviewing the penalty our role is not to determine whether we would
have imposed the same discipline in the first instance. Rather, our role is limited to determining whether
the discipline imposed was arbitrary, capricious or excessive.
In the instant case, two mitigating factors stand out. First, Claimant had more than thirty years of service,
having entered service in November 1975. Second, the police found the truck driver culpable in the
accident as the truck driver reportedly failed to see the Tamper at the crossing. Although the truck
driver's culpability does not excuse Claimant's violation of Rule 815, we do regard it as a mitigating
SBA No. 1049
Award 183
factor. Considering all of the circumstances, we conclude that the penalty of dismissal was excessive.
Carrier shall reinstate Claimant to service with seniority unimpaired but without compensation for time
out of service. As a condition of his reinstatement, Claimant shall be disqualified as a Tamper Operator.
M. H. Malin
Chairman and Neutral Member
W. Kreke ~ z' ~7'~J8" D. L. Kerby _
Organization Member Carrier Member I z ~` 7
0~
Issued at Chicago, Illinois on November 30, 2008