SPECIAL BOARD OF ADJUSTMENT NO. 986
Case No. 93
Docket No. NEC-BMWE-SD-2255D
PARTIES: Brotherhood of Maintenance of Way Employes
TO
DISPUTE: National Railroad Passenger Corporation (Amtrak)
FINDINGS:
Claimant J. Ferriola was employed as a track foreman by carrier in
Baltimore, Maryland. On July 21, 1988, Claimant was directed to
attend a formal investigation in connection with the following charge:
violation of NRPC Operating Rules and Instructions, Rule 910, which
reads in part: " . Track foremen are responsible for safety
instruction and safe performance of all employees under their
jurisdiction. They are responsible for the care and proper use of
tools, material and equipment . . ."
Specification: In that on Tuesday, July 19, 1988 approximately
between the time of 3:30 a.m. and 4:12 a.m. in the vicinity of MP
101 and MP 103, you failed to ensure the safety of employees in
your charge when you did not properly instruct the compactor
operator, Mr. M. Franklin, as to his clearing point and you also
did not take protective action to stop WHBA 11 when you realized
Mr. Franklin had passed the clearing point, the result of which was
the collision between WHBA 11 and Compactor A12310 in the vicinity
of MP 106.8. This resulted in personal injury to Mr. Franklin and
extensive damage to the compactor.
The hearing took place on July 27, 1988, and as a result, Claimant was
assessed a suspension of forty-five days and was permanently
disqualified as a track foreman. The organization thereafter filed a
claim on Claimant's behalf, challenging the assessed 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 violating
Safety Rule 910, which requires track foremen to be responsible for
safety instruction and safe performance of all employees under their
jurisdiction. There is no question that the Claimant made some serious
errors on July 19, 1988, which led to the collision and significant
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damage to Carrier property. The Claimant failed to tell the operator
of the proper tie up point.
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 the action
taken by the Carrier to have been unreasonable, arbitrary, or
capricious.
In the case at hand, the Claimant was guilty of violating several
safety rules. The Claimant received a 45-day suspension, and he was
permanently disqualified as a foreman. This Board has reviewed the
Claimant's past disciplinary record, and we find that the 45-day
suspension was appropriate and that the permanent disqualification as
foreman was much too severe given the nature of the incident and the
previous disciplinary record of the Claimant. This Board hereby
modifies the discipline to a one-year disqualification of the Claimant
from his foreman position, effective on the date of the investigation,
July 21, 1988, through July 21, 1989. The Claimant should be
instructed that if any further safety violations occur, his rights as
a foreman may be lost forever.
Award:
Claim sustained in part. The 45-day suspension of the Claimant
is affirmed. However, the permanent disqualification as foreman shall
be reduced to a disqualification as foreman for a period of one year
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effective July 21, 1988,,and-soncluding July 21, 1989.
PETER R. MEYERS '
Neutral Member-'
Organization Member Carrier Member-
Date:-
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