BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1122

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

and

NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD

CORPORATION

(Metra)

NMB Case No. 42

This dispute involves Mr. Miguel A. Palma employed by Metra as Assistant Track Foreman at Western Avenue in Chicago, Illinois.

On October 12, 2004, Mr. Palma was hand delivered a letter instructing him to attend a formal investigation on Friday, October 15, 2004, at 1:00 p.m. for the purpose of developing the facts, determining the cause and assess responsibility, if any, in connection with his alleged unauthorized removal of a blue flag in the Western Avenue Coach Yard on October 7, 2004.

Mr. Palma was charged with alleged violation of Rule 5.13-a Paragraph 8 - Safety Rules and General Procedures Manual.

The investigation was held on October 15, 2004. Following the investigation, Mr. Palma received a Notice of Discipline letter dated November 2, 2004, assessing him discipline of Three (3) work days deferred suspension for violation of Safety Rules and General Procedures Manual: Rule 5.13-a Paragraph 8.

The Notice of Investigation letter of October 12, 2004, and Notice of Discipline letter of November 2, 2004, are attached to this Award.

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The transcript of the investigation held on October 15, 2004, 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.

Mr. James Renfrow, Director of the Milwaukee District Engineering Department, conducted the investigation held on October 15, 2004.

Mr. David Leahy, Maintenance Engineering Supervisor, Milwaukee District Engineering; Mr. John Bullock, Westline Roadmaster, Milwaukee District; Mr. John Cardelfi, Mechanical Foreman, Milwaukee Road District; and Mr. Salvador Lopez, Track Inspector, appeared as witnesses for the Carrier.

Mr. Frank Kmiec, Local Chairman, and Mr. Mark Wimmer, General Chairman for the Brotherhood of Maintenance of Way Employes, represented Mr. Palma at the investigation.

In our review of the investigation transcript and the testimony of all Carrier officials who testified, it is clearly evident that an order from a top official in the Engineering Department to remove a derail in the Western Avenue Coach Yard created a situation where in the process of implementing that decision, serious disagreement between Department officials surfaced as to whether it was an

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appropriate course of action. Without taking sides with those who testified as to whether it was right or wrong, it is evident that when the Claimant in following an order from his supervisor to remove the derail, found himself in the precarious position of being charged with removing it without authority and disciplined for his infraction of Carrier Rules.

This Board finds that Carrier's action in this dispute is incomprehensible and fully supports the closing statement of Mr. Mark Wimmer, General Chairman of the Brotherhood of Maintenance of Way Employes, who represented Mr. Palma where he stated in part as follows:

First of all we believe that Mr. Palma's record should be expunged of all mention of this unfortunate situation of poor communication between the mechanical department and its own employees. Mr. Palma should not be held responsible in any way for following instructions. He was carrying out h is instructions. It's obvious from the testimony from the higher up engineering folks that there was a conversation between Mr. Leahy and Mr. Olsen as well as another conversation between Mr. Leahy and Mr. Clifford and attempting to dissuade the mechanical department from removing the derail. An even over Mr. Leahy's objections the mechanical department insisted that the derail be removed because of as Mr. Clifford put it safety hazards, of tripping hazards.

We think the record will speak volumes about Mr. Clifford's testimony upon questioning from the organization on the reasons for not advising his own workers that he was ordering the removal of a safety compliance from his yard that was in his jurisdiction. This entire incident could have been prevented by a simple managerial edict or directive from him to his shop employees that he had ordered the removal of a derail that was put on temporarily but instead his employees, his mechanical employees, were allowed to work in a vacuum by not knowing that someone higher up namely Mr. Clifford and Mr. Olsen had ordered the removal of a derail even over the objections of engineering management. Mr. Palma cannot be held responsible for following orders.

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