SPECIAL BOARD OF ADJUSTMENT NO. 1049
AWARD NO. 196
Parties to Dispute:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim:
Claim on behalf of D. S. Anders that he be paid for all time lost as a result of his
dismissal following a January 27, 2009 formal investigation concerning his improper
performance of duty as a Machine Operator when the THM 08023 he was operating
collided with the rear cart of the THM 03001 operated by K. A. Alexander at Milepost
15.5 DW, in the vicinity of Danville, Virginia on December 15, 2008, and his failure to
promptly report this collision.
(Carrier File MW-GNLV-08-43-SG-630)
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 record reflects that on December 15, 2008, Claimant was tramming his Tie Handling Machine when
he collided with the rear cart of the Tie Handling Machine that he was following. Although Claimant
maintained that the brakes were defective, a mechanical check found no defects. It is clear that Claimant
failed to comply with Rule 814 which requires being able to stop within half the range of vision.
Furthermore, the evidence established that Claimant failed to promptly report the accident to his
supervisor. Instead he waited an hour and ten minutes before reporting the accident and then did so only
after his efforts to repair the damage to his machine by himself were unsuccessful. We conclude that
Carrier proved the charges by substantial evidence.
SBA No. 1049
Award 196
In the instant case, however, considering all of its peculiar facts and circumstances, we find the penalty
of dismissal to be excessive. Claimant shall be reinstated to service but without compensation for time
held out of service and he shall forfeit his Machine Operator seniority.
M. H. Malin
Chairman and Neutral Member
T. W. Kreke D. L. Kerb
Organization Member Carrier Member
Issued at Chicago, Illinois on September 24, 2009