BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 924
PARTIES: BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
TO
DISPUTE: CHICAGO & NORTH WESTERN TRANSPORTATION C0.
STATEMENT
OF
CLAIM: "Claim of the System Committee of the Brotherhood
that:
1. The disqualification as Common Machine operator assessed D.
E. Austin was unjust and excessive and on the basis of
improper charges. (Organization File 4SW-1237 D; Carrier
File 81-88-28).
2. Claimant Austin shall be allowed the remedy as prescribed
in Rule 19(d):
"If the charge against the employe is not
sustained it shall be stricken from the record.
If the employe has been removed from position
held, reinstatement will be made with all rights
unimpaired and payment allowed for the assigned
working hours actually lost while out of service of
the Company, at not less than the rate of pay of
position formerly held, less earnings in outside
employment, for the difference in rate of pay
earned, if in the service. An employe who has
earnings from outside employment must deduct from
those earnings actual necessary expenses in
securing and performing work."
FINDINGS:
Claimant D. E. Austin was employed by Carrier as a Common Machine
Operator. On October 12, 1987, Claimant was working as a Crane
operator at Sheffield, Iowa when he operated Little Giant Crane boom
into an Iowa Public Service Line. Subsequently, Claimant was charged
Kith:
"Yo-it failure to properly perform your duties on October 12,
1987, when you failed to report incident when boom of Little
Giant Crane 902 System
No.
17-3309 came in contact with
overhead power lines and failure to report incident as
outlined in ADM-E's Bulletin No
.
13 dated September 23, 1987."
An investigation was held on October 19, 1987, and as a result
Claimant was disqualified as a Common Machine Operator. The
~1zy-i3y
Organization thereafter filed a claim on Claimant's behalf,
challenging his disqualification.
This Board has reviewed the evidence and testimony in this case
and we find that there is sufficient evidence in the record to support
the finding that the Claimant was guilty of the offense of failing to
promptly report an incident which had occurred while he was in charge.
Once this Board has determined that there is sufficient evidence
in the record to support the guilty finding, we next turn our
attention to the type of discipline imposed. This Board will not set
aside a Carrier's imposition of discipline unless we find the action
taken by the Carrier to have been unreasonable, arbitrary or
capricious.
In the case at hand the Claimant had over eleven years of
seniority. By disqualifying him from his position as a Common Machine
Operator, the Claimant has been effectively removed from the
opportunity to operate a number of machines. This Board finds that
that discipline was much too severe given the circumstances of this
incident and the length of seniority of the Claimant.
This Board finds that the Carrier acted unreasonably when it
permanently disqualified the Claimant for his wrongdoing in this case.
This Board finds that a one year disqualification would have been
sufficient, given the circumstances, to punish the Claimant and put
him on notice that he must live up to his responsibilities under the
Rules in the future. Therefore, this Board hereby reduces the
disqualification period to one year.
AWARD
Claim sustained in part. Permanent disqualification of the
2
Claimant is hereby reduced to a one year disqualification and the
Claimant is to be made whole for all losses resulting from that
disqualification over one year.
~v
Neutral Membe
r
`r v
arrier M b r 0 ga ization M m r
Date:
IwV
2 81989
3