SPECIAL BOARD OF ADJUSTMENT NO- 986
CASE NO. 113
DOCKET N0. NEC-BMWE-SD-2468D
PARTIES: BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
TO
DISPUTE: NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK)
DISPUTE: Claim of the System Committee of the Brotherhood:
1. The dismissal of R. R. Rippel, III for alleged
violation of Amtrak Rules of Conduct Rules A, B, D
and NORAC Operating Rules Rules 830 (paragraph 3)
and 997 and Amtrak Safety Rule 4204 (b) on January
16, 1989, was unwarranted.
2. The Carrier has fatally flawed procedurally on
several counts; the Carrier has failed to meet the
required burden of proof necessary to sustain the
charges; and the Carrier has acted viciously and
unreasonably towards the Claimant.
3. The Claimant shall be reinstated with full
back pay, including all overtime lost, vacation,
personal leave, and retirement credits and all
seniority rights unimpaired. The entire matter
shall be expunged from Claimant's record.
FINDINGS:
Claimant R. R. Rippel, III was employed as a track foreman at
Baltimore, Maryland.
On January 18, 1989, the Carrier notified the Claimant of the
following charges:
Violation of Amtrak Rules of Conduct A, B, and D
Violation of NORAC Operating Rules 830 (paragraph
3) and 997
Violation of Amtrak Safety Rule 4204 (b)
Specification: In that on Monday, January 16,
1989, at approximately 10:55 p.m., in the vicinity
of M.P. 133.3 on No. 3 track, you were operating
TC AJ24734 when it collided with TC A58828,
causing damage to TC AJ24734 as well as injury to
yourself and Mr. M. Shindeldecker.
After several postponements, the formal investigation was completed on
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`_n
(June 7, 1989. On June 22, 1989, the Carrier notified the Claimant
that he was found guilty of all charges and was assessed discipline of
dismissal in all capacities effective immediately. Thereafter, the
organization filed a claim on Claimant's behalf, challenging his
dismissal. On August 18, 1989, the Carrier notified the organization
that the Claimant's discipline was reduced to a suspension and a oneyear disqualificaton as a foreman and Claimant's time out of service
to apply without payment for time lost.
This Board has thoroughly reviewed the evidence and testimony in
this case and we find that there is not sufficient evidence in the
record to support the finding that the Claimant was guilty of the
numerous rule violations with which he was charged. Therefore, the
Carrier had no basis upon which to impose discipline.
This Board and other boards have held on numerous occasions that
the fact that an accident occurs does not necessarily mean that a rule
was violated. Moreover, if a carrier charges an employee with rule
violations, the burden of proof is upon the carrier to demonstrate
with sufficient evidence that those rules were violated.
In the case at hand the Claimant was charged with violations of
Rules A, B, D, Operating Rule 830 Paragraph 3, Operating Rule 997, and
violation of Amtrak Safety Rule 4204(b). This Board has thoroughly
gone through the record evidence in this case and it is clear that the
Claimant understood the rules of conduct and therefore there is really
no violation of Rules A, B, and D. With respect to the operating
rules and safety rule, there is not sufficient evidence to prove that
the Claimant violated those rules. There is some evidence that the
safety light on the crane was not operating properly, and that there
were oily, slick conditions on the tracks. Although this Board is not
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convinced that there were brake problems on the Claimant's truck,
there is simply not enough evidence in the record to show that the
Claimant acted improperly on the night in question.
Since the Carrier has the burden of proof in cases of this kind,
and there is not sufficient evidence in the record to support the
guilty finding, the claim must be sustained.
Award
Claim sustained. The suspension and disqualification shall be
removed from the Claimant's record and he should be made whole for all
economic losses resulting from the discipline.
Pe er R eyers
Neutra ember
I 1AX
Carrier Member
J
rganization Member
Date:
1b-l- qo
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