S.B. 1049
Award No. 206
Parties to Dispute:
SPECIAL BOARD OF ADJUSTMENT NO. 1049
AWARD NO. 206
BROTHERHOOD OF MAINTENCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim: "Claim of the System Committee of the Brotherhood that
I. The discipline (90 days actual suspension) imposed upon Mr. C. McDowell
in connection with charges of improper performance of duties as a B & B
flagging foreman, in connection with allegations that Claimant failed to remain
present throughout the day at the work locations of one of the contractors for
whom he was flagging or to remain readily available for contact by radio. as
required by Safety and General Conduct Rules GR-3 and GR-6, the latest
incident being August 26, 200$, was arbitrary, capricious, unjust and in violation
of the Agreement (Carrier's File MW-GNVL 08-32-BB-570)
2. As a consequence of the unjust suspension described in Part I above, Mr.
McDowell shall be compensated for all earnings opportunities and other benefits
deprived him, including investigation attendance and that his record be cleared of
the charges and results therefrom."
Upon the whole record and all the evidence, after hearing, the Board finds 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 is based on the facts and circumstances of this particular case and
shall not serve as precedent in any other case.
AWARD
Alter thoroughly reviewing and considering the record and the parties'
presentations, the Board finds that the claim should be disposed of as follows:
The Claimant was performing the duties of Roadway Worker in Charge, while
assigned as a B&B Flagging Foreman when the events leading to his suspension took
place. A Roadway Worker in Charge is the person entrusted to regularly monitor pile
driving such that immediate action can be taken if there is any safety threat to train
traffic. The particular project to which the Claimant was assigned was a North Carolina
S.B. 1049
Award No. 206
Department of Transportation (NCDOT) project involving the construction of a highway
bridge over the railway. The railroad was charging the state for the expertise of a
Roadway Worker in Charge, specifically the Claimant, to make sure no pilings impeded
the track. The Carrier has a general conduct rule (GR-6) that employees must not absent
themselves from duties without the proper permission from an authority. The Carrier
maintains that to be absent from the work site in the case of a Roadwav Worker in
Charge means the person is not dutifully performing the job duties.
On August 23 the NCDOT complained to Claimant's supervisor that the Claimant
was nowhere to be found. The preponderance of evidence supports the finding that the
Claimant on the day of August 26, was not at the first site, the second site, or the motel
when supervisor Collins and one other employee, Mr. Browne went to check on him.
The other workers on site also attested to the fact that the Claimant had not been seen and
the Claimant did not answer three attempts at radio calls. When Claimant did finally
answer a subsequent call, he responded to his supervisor's question of. Where are you?"
by stating he was at the frst work site. However, when he gave his supervisors directions
they discovered him at a park, and not at work. His explanation for this was bad weather.
He also claimed he had gone out to the store to buy chicken for dinner and other personal
reasons.
The Claimant's supervisor ordered him to leave service, pending an investigation,
due to having been away from his work assignment. In a letter dated September 3, the
Claimant was told to appear at a formal investigation on September 18. The hearing
officer made a finding that claimant was guilty and awarded a ninety-day suspension.
The Organization raised both some procedural concerns and substantive concerns.
Chief among the substantive concerns were: that the Claimant had not been trained to this
job, that it was impossible to be two places at once, and that the charge was vague.
However, the Carrier met its burden of proof and the Board finds there is not enough
evidence to support the Organization's objections. Given the circumstances and facts of
the case, the discipline is warranted.
The claim is denied.
~J, " 4 / // ~~
M.M. Hoyman f'
Chairperson and Neutral
3
ember
(h: Kreke D. L. Kerby
Employee Member Carrier Member
.
i
Date Signed Date Signed
Issued at Chicago, Illinois on June 19, 2010.