BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION
(Metra)
NMB Case No. 33
This dispute involves Mr. Juan J. Rivera employed on the Met.a Electric District as a Track Inspector.
On April 15, 2003, Mr. Rivera was hand delivered a letter requesting him to attend a formal investigation on Tuesday, April 22, 2003, for the purpose of determining the cause and assess responsibility, if any, in connection with his alleged failure to call the flagman to obtain permission to enter the work limits listed on Form B-302, Line 2, of Track Warrant 3041102, dated April 11, 2003. Mr. Rivera was charged with possible violation of Metra Maintenance of Way Rule 15.2.
At the request of the Organization, the investigation was postponed until Wednesday, April 30, 2003, and held on that date.
Following the investigation, Mr. Rivera received a Notice of Discipline letter dated May 16, 2003, assessing him discipline of Fifteen (15) Days Actual Suspension for violation of NIRCRC Rules for failure to call the flagman to obtain permission to enter the work limits listed on Form B-302, Line 2 of Track Warrant 3041102, dated April 11, 2003.
The letter of April 15, 2003, calling for the investigation and the Notice of Discipline letter of May 16, 2003, are attached to this Award.
The transcript of the investigation held on April 30, 2003, provides the basis for this Board's adjudication of this dispute.
This dispute is before this Special Board of Adjustment established by agreement between the Brotherhood of Maintenance of Way Employes and the Northeast Illinois Regional Commuter Railroad Corporation (Metra) dated November 12, 1999. SBA No. 1122.
On April 11, 2003, Mr. Rivera was assigned to go out on Track No. 4 and do his usual inspection. Mr. Rivera testified that when he arrived at the limits of Form B, there was no flag displayed and no one was around or working at the location. Mr. Rivera testified that he thought he heard the dispatcher on the radio saying that the Form B Line 2 was cancelled.
Mr. Rivera then proceeded through the area and, as a precaution, blew his horn. When Mr. Rivera arrived at 51s` Street, he asked permission from the tower operator to proceed and went north. When Mr. Rivera called the dispatcher to cancel his track permit, he was informed that Form B was still in effect.
Mr. Rivera testified that he did not call the flagman because he thought Form B was cancelled and there was no flag at the site and no one was working in the area.
Mr. Mike Stuckey, Road Master. Metra Electric testified that he was called by Randolph Control and told that Mr. Rivera had passed through a work area without contacting the flagman.
Mr. Stuckey testified that he discussed the incident with Mr. Rivera less than an hour after the occurrence, and Mr. Rivera advised him what had taken place.
Mr. Joe Garzon was the flagman in charge of the Form B area on the day of the incident.
Mr. Garzon testified that he was advised that there was no flag visible at the entry of the territory covered by Form B. Mr. Garzon testified that he walked over to the area and found that the flag which he placed there in the morning was down apparently being blown down by the wind. Mr. Garzon replaced the flag in its proper position.
We have reviewed the testimony of all who testified at the investigation, and the record shows that Form B was not cancelled as assumed by Mr. Rivera, the Claimant, in this dispute.
Mr. Rivera should have contacted the flagman or the dispatcher before proceeding through the area.
Accordingly, there is basis for disciplinary action, however, we question the justification for assessing Mr. Rivera fifteen (15) days actual suspension.
Mr. Rivera has a good record in his 25 years of service in the railroad industry.
Based on the record before us, this Board is of the opinion that the discipline assessed Mr. Rivera was unreasonable and excessive.
It is our decision that the fifteen (15) days actual suspension should be reduced to five (5) days actual suspension consistent with Step 3 of the Carrier's progressive discipline policy.
Mr. Rivera should be compensated for all days in excess of five (5) days that he was out of service and his record changed to reflect the decision of this Board in this dispute.