SPECIAL BOARD OF ADJUSTMENT NO. 956
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYEES )
and ) AWARD NO. 154
CASE NO. 154
NEW JERSEY TRANSIT RAIL )
OPERATIONS, INC. )
STATEMENT OF CLAIM:
Claim on behalf of W. Keane, Class I Operator, for eapungement of discipline
assessed, payment for all time lost, and reimbursement for benefits lost during time
withheld from service.
FINDINGS:
Special Board of Adjustment No. 956, upon the whole record and all the
evidence, finds that the parties herein are Carrier and Employes within the meaning
of the Railway Labor Act; as amended; that the Board has jurisdiction over the
dispute herein; and that the parties to the dispute were given due notice of the
hearing and did participate therein.
Claimant has a seniority date of April 30,1991. He operates the Self-Raising
Tamper ME705. On May 15, 2007, he was notified by the Carrier to attend a
hearing in connection with the following charges:
On May
7, 2007,
at approximately 10:30 a.m. in Garfield, NJ, you had just
finished fueling the Self-Raising Tamper No. ME
705.
Daring that process
you extended the work head out. After having completed the fueling, you
failed to return the work head back to a locked position that was safe for .
track travel clearances. You reverse traveled in a west direction, hitting the
electric switch lock at the Dundee Spur, resulting in material damage to the
lock in the amount of
$7,644.
The hearing was held on August
29, 2007.
Following the hearing, the Carrier
determined that the Claimant was guilty of the charges and issued the Claimant a
seven day actual suspension.
From a review of the record, it is evident that the facts adduced at the
hearing support the Carrier's initial charge and the ultimate determination of
Claimant's guilt. By far the most important was the Claimant's own admission of
wrongdoing. The transcript of the hearing reads in pertinent part:
SBA No. 956 Award No. 154
Page 2 Case No. 154
[Hearing Officer[: Do you want to explain, in your own words, why you think it
occurred -I mean it's been established that you're a
responsible, a welt experienced Operator and this type of
occurrence doesn't usually happen. What bappened on that
day that made it different?
Claimant: Well, as previously stated, we stopped for fuel at the same time
I was servicing the machine, put the work head out, took on
motor oil, walked around the machine, put it in the side
compartment, climbed on that side of the machine, and in a
rush to get out of the way for next equipment to take on fuel,
backed up and clipped the casing. And the casing is the only
thing that was broke.
[Hearing Officer]: So let's just get to why it happened. Was it an oversight on
your part?
Claimant: Correct.
[Wearing Officer]: So you're basically admitting that you made a mistake, is that
correct?
Claimant: Correct.
Based on the foregoing, we find that the record established that Claimant
hurriedly backed up his machine in making way for other equipment. In so doing,
Claimant violated the following rules:
Rule 383 (b): Maintain constant lookout for obstructions or other unsafe
conditions in the direction in which moving, particularly when rounding
corner, passing doorway, in a congested place, crossing an intersection.
Rule 522: Movable work parts of hoisting equipment or of other selfpropelled or other equipment must be secured in "UP" or otherwise
"CLEAR" position as soon as work is stopped and before traveling.
Concluding as we do that the charges have been proven, we next turn our
attention to the reasonableness of the disciplinary penalty meted out. The
Organization argues that the imposition of a seven day actual suspension was overly
harsh and inconsistent with numerous other instances in which employees have been
issued lesser discipline for similar offenses. However, evidence produced by the
SBA No. 956
Page 3
Award No. 154
Case No. 154
Organization in the form of waivers signed by other employees is not particularly
relevant. Waivers in lieu of investigation are akin to settlements by the parties.
There are many reasons for the Carrier to offer a waiver and for the Organization
and the employee to accept one. The Board cannot delve into the circumstances
which led to the signing of the waivers, and therefore they are of limited probative
value.
In the final analysis, the Board agrees with the Carrier that discipline is
warranted where negligence of the kind seen in the instant ease is proven. However,
while we recognize the reasonable range of discretion given to the Carrier in
imposing discipline, we also note that there are mitigating circumstances in this
matter which should have been considered. Claimant is a long term employee with
an unblemished record. We believe that a five day actual suspension should serve to
impress upon the Claimant the nature of his offense and the need to improve his
performance in the future. Accordingly, the seven day suspension is hereby reduced
to a five day suspension. Claimant shall be paid for two days' lost pay and benefits.
AWARD
Claim sustained in part as set forth in the Findings.
ANN S. KENIS
Neutral Member
.J
William Capik
Organization Member
Agues Duncan
Carrier Member
Dated this/" day of ~~/~2008.