NATIONAL RAILROAD PASSENGER CORPORATION
(AMTRAK) - NORTHEAST CONFERENCE ("CARRIER")
AND
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
DIVISION - IBT RAIL CONFERENCE
NMB Case No. 285
Employee: Charleston George
Neutral Member: Barbara Zausner
Carrier Member: Richard Palmer
Organization Member: Jed Dodd
STATEMENT OF CLAIM
1- The dismissal of Claimant C. George for the alleged violation of
General Code of Operating Rules (GCOR) 5t1 edition April 3,
2005 10.1 and 10.3, is excessive, unwarranted and in violation
of the Agreement (System File BMWE-55 1-D).
2- As a consequence of the violation referenced in Part I above, Mr.
George shall be exonerated of all charges and he shall be
compensated for all wage loss suffered as a result of the
Carrier's actions.
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SBA No. 986 Award No. 285
FINDINGS
Upon the whole record and on the evidence, the Board finds that
the parties herein are Carrier and Employer within the meaning of the
Railway Labor Act, as amended; that this Board has jurisdiction over the
dispute, and that the parties were given due notice of the hearing.
The Claimant, Charleston George, was a Central Division Track
Foreman. He was dismissed for violating General Code of Operating
Rules for operating a high rail weed spray truck to occupy the Back Up
Main between CP Clara St. and CP South Wye junction outside the limits
of Track and Time Authority 501 and 502. On the day in question he
was the Employee in Charge of On Track Safety.
The record establishes that the Claimant was given track and time
authority for forms 501 and 502 which form was initialed by the
dispatcher to show the Appellant had correctly repeated back. The
dispatcher noticed a track indication light that indicated the Claimant
was outside the track and time authorities issued to him. The Claimant
confirmed he was in the wrong place. He acknowledged during the
investigation that he knew the significance and the dangers that could
have resulted from his being "in the wrong place at the wrong time. He
claimed it was a slow train day.
There is no dispute that the Claimant occupied the track without
proper track protection on July 28, 2009. The Organization argues that
the charges in this case are unrelated to the Claimant's oprevious
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SBA No. 986 Award No. 285
incidents. The Organization points to the Claimant's nearly eighteen
years of satisfactory service and contends the dismissal is punitive,
harsh and excessive.
The Organization cites an NRAB Third Division Award 1903 7
which found the Carrier "estopped from urging incidents remote in time
as a basis that Claimant is a second offender." That Board also held.
"the ultimate penalty of dismissal is reserved for repeated and seirous
infractions of work or conduct rules."
The record confirms that the incident at issue is the Claimant's
third operating rule violation. There are two earlier occasions in 2002
and 2005 as well as unrelated offenses in 2008 and 2009. The
Claimant's eighteen years of service, including the violations cited above,
is not so satisfactory as to constitute a mitigating factor sufficient to set
aside the termination.
This Board has upheld other dismissals where an employee was
"guilty of violating several Carrier safety rules ...." The Board concluded,
"Given that poor service record, coupled with the serious safety
violations" committed by the claimant, that termination was not
unreasonable, arbitrary or capricious." (SBA No. 986, Case No. 247
(Meyers)). Contrary to the Organization's assertions, the Claimant is not
a first time offender. He has been disciplined in the past for safety
violations and had ample time to correct his behavior.
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SBA No. 986 Award No. 285
The claim is denied.
Barbara Zausner, Neutral Board Member
May 31, 2010
i
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For the Carrier
Richard F. Palmer, Director - Labor Relations
