Award No. 64

SPECIAL BOARD OF ADJUSTMENT

NO. 997


CONSOLIDATED RAIL CORPORATION
 -VS
 BROTHERHOOD OF LOCOMOTIVE ENGINEERS

 DOCKET NO. CRE-16418-D
 CASE NO. 64

 CLAIMANT: W.I. Swart
 FOR THE CARRIER: Jeffery H. Burton, Director
 Labor Relations
 FOR THE ORGANIZATION: Robert Godwin, General Chaim-man
 BLE
 NEUTRAL: Dr. James R. McDonnell

STATEMENT OF CLAIMS



"Appeal of Engineer W.I. Swart from the discipline of (15) days actual suspension assessed.in connection with the following:

 OUTLINE OF OFFENSE: Extreme negligence in operation of train ENBU-6 on April 17, 1992 at approximately 2:00 a.m. at the east end of Frontier, South Yard, South Lead and South #6 Track, Buffalo, NY, resulting in the derailment of cars CN 610313, CN 610357 and DWC 608628, while assigned as engineer on ENBU-6, on duty April 16, 1992 at 6:15 p.m.

 FINDINGS
The Board, upon the whole record and all evidence finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended ("RLA"); that this Board is duly constituted by agreement and has jurisdiction of the parties, claim and subject matter which was held on June 7, 1993 in Philadelphia, Pennsylvania. The Board makes the following additional findings.

 DISCUSSION
The instant claim has a striking similarity to Award No. 62, SBA, No. 997 CRE-16151-D, W.F. Kirkpatrick.

 Before any consideration of the merits of the claim, procedural matters must first be explored.

 The Board is troubled by the decision of the Carrier to remove the Claimant from service contrary to the provisions of Article G-m-11, Discipline and Investigation, which follows:

 ARTICLE G-m-11 - DISCIPLINE AND INVESTIGATION





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        (2) If an engineer is held out of service before a formal investigation for other than a serious act or occurrence, he shall be paid what he would have earned on his assignment had he not been held out of service beginning with the day he is taken out of service and ending with the date the decision is rendered or he is returned to service, excluding whether or not he is disciplined. Holding an engineer out of service before a formal investigation ;or paying him for being out of service for less than a serious act or occurrence is not prejudicing him.


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 Moreover, the Board takes note of the definition of "Extreme Negligence" referred to in Article G-m-11 and expressed in G-m-11 Q&A #l, as follows:

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        G-m-11 Q&A #1


        Q. Re (b) (1). What is meant by the term "Extreme

        Negligence?"

        A. The right of Management to remove an engineer from

        service allegedly involved in extreme negligence must

        be used sparingly and duly conferred to transgres

        sions of high risk or danger so that Management can

        say with justification that, notwithstanding the

        sanctity of the provisions of this Article, the

        protection of life and limb of affected employees and

        protection of Corporation property or property

        entrusted to custody of the Corporation, cry out or

        demand, the immediate removal of the engineer.


--------------------- - -

 According to the Carrier's records the derailment of three cars on train ENBU-6 on April 17, 1992, at the Frontier Yard, Buffalo, New York took place at approximately 2:00 a.m. The evidence shows that he was removed from service by the Carrier at 8:35 a.m. on April 17, 1992, some six (6) and one half hours later.

 Neutral David H. Brown, was equally troubled by the Carrier's removal of an engineer in the matter of SBA, No. 909, Award 83, May, 1988. He said, in part:

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          It appears to the undersigned neutral that this part of the agreement is being ignored with increasing frequency. The inevitable result of this practice is that with the engineer already removed from service there is undeniable pressure on management, including the officer conducting the investigation-.arid the officer assessing discipline, to justify summary removal of the employee.


In all probability, the Claimant was negligent. It may well be that he deserved some form of discipline, but his negligence was not extreme as defined by contract language above. This matter should have been handled with the due process provided by the Agreement.

 The removal of the Claimant from service at 8:35 a.m., on April 17, 1992 was arbitrary and capricious and in violation of G-m-11.

 AWARD
      Claim sustained.


The Claimant shall be paid for all time lost as a result of this incident, his benefits restored and the discipline expended from his record.

        _ __ . ~~.~-~ f-

                      Jeffery'IT. Bur on, erect

                      Labor Relations

                          - (I Zi 0~"


                      Robert Godwin, General Chairman

                      BLE


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                                            S

                    Q,OlfAVA

                        =:James R. McDonnell eutral


August 17. 1995
 Date

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