Daniel B. Novella


PARTIES Brotherhood of Maintenance of Way Employes
 TO and
 DISPUTE Southern Pacific Transportation Company
 (Western Lines)
 STATEMENT 1. That the Carrier's decision to
 OF CLAIM disqualify Claimant as Foreman
 and to assess a twenty (20) day
 suspension was unduly harsh, in
 abuse of discretion and in
 violation of the current Agreement.
 2. That because the Carrier failed
 to prove the charges by introducing
 substantial evidence that it now
 be required to compensate Claimant
 for all wage loss suffered and remove
 all charges from his record.

 FINDINGS
Upon reviewing the record, as submitted, I find that the Parties herein are Carrier and Employes within the meaning of the Railway Labor Act, as amended, and that this Special Board of Adjustment is duly constituted and has jurisdiction of the Parties and the subject matter; with this arbitrator being sole signatory.
 SBA-947 Award No. 15

 According to the record produced at the formal hearing on September 17, 1984, Mr. D. Novella was serving as Crossing Gang Foreman at the Benicia yard at MP 34.5 on August 15, 1984. At approximately 12:30 a.m. on that date there was a derailment which was attributed to the fact Mr. Novella had not properly protected a track which was impassable. Later the same day, Mr. Novella's Supervisor, Mr. Flores, upon inspecting the same track, determined it was unsafe for passage even though it had been released by Mr. Novella. Mr. Novella was offered and signed a waiver for the first incident on August 15, 1984, but did not sign a waiver pertaining to the second incident that day. Although his personnel record reflects he did agree to the second waiver.

 Track derailments are extremely serious not only because they could be life threatening, but also because of the cost to the Company in materials, wages, and delays. Mr. Novella in unrefuted testimony, stated he had been advised by Mr. Flores to utilize a 75 pound rail to match up to an 85 pound rail. To fasten the rails together he used a regular pair of angle bars rather than a pair of compromise joints. What needs to be examined is the Company's responsibility to an employee once a waiver is offered. In addition, it is necessary to make sure Mr. Flores was not punished for the same rule infraction twice. Assuming he wasn't, it is important the disciplinary actions against him were progressive.

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,~" BA-947 Award No. 15

    The Company in any discipline matter has the burden of proving the employee's guilt. They have proved to my satisfaction, the Grievant was disciplined for two different incidents on August 15, 1984. This was supported by the Grievant's own testimony when he said " . . . .and to make sure I had proper flagging and not to let myself open as I did the day prior, and he would talk to me later." Clearly, the Grievant was admonished for his failure to properly protect the track the day before which resulted in a derailment at about 12:30 a.m., August 15, 1984. The Grievant was therefore aware of the rule violation. However, on August 15, 1984 at about 3:30 p.m., he was cited again for the same rule violation, in addition to Rule M530 and Rule 801. Here, although the Grievant may have used poor judgement in releasing the track, there is no evidence he failed to properly protect the track. The Grievant believed the track was ready for use. It is also obvious the,Grievant cannot be faulted for. using a 75 pound rail which he was told to use. Mr. Novella did make a serious error in not using a pair of compromising joints in connecting the track. The regular pair of angle bars would not compensate for the difference in rail size. Mr. Novella should have known this. This is not a violation of Rule M202, but is a violation of M530.


    In reviewing the discipline issued in this case, we find Management jumped from the issuance of 45 demerits (waiver


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SBA-947 Award No. 15

 accepted August. 15, 1984). for the first instance on August 15, 1984, to a twenty (20) day suspension and a disqualification for the second instance in which there was a violation of Rule
 M530. Although Mr. Novella does deserve to be disciplined, it
 should be corrective or progressive discipline. At any rate,
 a disqualification that is tantamount to discharge is too
 severe. This is true for several reasons. There is no
 substantiation Mr. Novella cannot do his work as foreman. The
 use of disqualification is probably inappropriate; it does not
 fit the crime. Secondly, the Company issued two types of
 discipline for the same offense; a twenty-day suspension and a
 disqualification. In view of the strong industrial practice
 of corrective, progressive discipline, it is unfair to issue
 two disciplines, each more intense than previous discipline,
 for the same offense. Also, as mentioned above, it was not
 proved Mr. Novella was guilty of all the violations attributed
 to him. Finally, according to Mr. Novella's personnel record,
 the Company did accept a waiver which returned Mr. Novella to
 Assistant Track Foreman. He cannot now be more severely
 punished for the violation.

 AWARD

      Mr. Novella is to be reinstated to a position of Track Foreman effective September 4, 1984. The twenty-day suspension is to stand.


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SBA-947 Award No. 15

    ORDER


        The Company is directed to comply with the above Award within thirty (30) days of its issuance.


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                          Carol J.,Zamp zini,JNeutral


Submitted:

 June 19, 1985
 Denver, Colorado

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