SPECIAL BOARD OF ADJUSTMENT N0. 986
CASE N0. 115
DOCKET NO. NEC-BMWE-SD-24690
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 thirty-calendar day suspension and
disqualification of Claimant David Kerl from
operating all Amtrak equipment for alleged
violation of N.R.P.C. (Amtrak) NORAC Operating
Rules and Special Instructions Rule 806 and
N.R.P.C. (Amtrak) Rules of Conduct (NRPC 2525)
(9/85) Rule B on February 27, 1989, was
unwarranted.
2. The Carrier failed in its burden of proof to
show the Claimant violated the rules charged, and
the discipline assessed is harsh, arbitrary,
capricious, and without just cause.
4. The Claimant should be exonerated of the
charge, compensated for all compensati-on loss due
to the discipline, and the discipline expunged
from the Claimant's record.
FINDINGS:
Claimant David Kerl was employed by the Carrier as an Engineer
Work Equipment B Operator at Philadelphia, Pennsylvania.
On March 2, 1989, the Carrier notified the Claimant of the
following charges:
Violation of N.R.P.C. (Amtrak) NORAC Operating Rules
and Special Instructions Rule 806
Violation of N.R.P.C. (Amtrak) Rules of Conduct
(NRPC 2525), dated 9/85, Rule B
Specification
No.
1: On Monday, February 27, 1989,
at approximately 3:00 p.m., on Conrail Main Line, at
approximately M.P. 9.5, you removed Pettibone
#A47905, that you were operating, from No. 2 track
Delair Branch and fouled
No.
1 track, Delair Branch
without permission.
After one postponement, the disciplinary investigation took place on
April 13, 1989. On April 26, 1989, the Carrier notified the Claimant
that he was guilty of all charges and was assessed discipline of a
thirty-calendar day suspension and disqualification from operating all
Amtrak equipment. On May 2, 1989, the Claimant filed an appeal of the
discipline imposed upon him; and on June 2, 1989, the Carrier reduced
the suspension to the time the Claimant had already served and the
disqualification to a one-year period. Thereafter, the organization
filed a claim on Claimant's behalf, further challenging his discipline.
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 rule violations with
which he was charged. The Claimant has admitted that he fouled the
Number One Track without authority and without notifying anyone. The
Claimant's actions were unsafe and a definite violation of the rules.
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 its action
to have been unreasonable, arbitrary, or capricious.
In the case at hand, the Carrier has already exercised leniency
by reducing the discipline to time held out of service and
disqualification for one year. This Board cannot find that the
disciplinary7action ultimately taken against the Claimant was
unreasonable, arbitrary, or capricious. Therefore, the claim will be
denied.
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Award
Claim denied.
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'Peter R. Mey s
Neutral Member
Carrier Membe
P
rganiza ion member
/o - /- fo
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