(Brotherhood oflocomotive Engineers and Trainmen PARTIES TO DISPUTE: ( (Kansas City Southern Railway Company (former (MidSouth Rail Corporation

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1 NATIONAL RAILROAD ADJUSTMENT BOARD FIRST DIVISION 09-1-~-OOOOI The First Division consisted of the regular members and in addition Referee Brian Clauss when award was rendered. (Brotherhood oflocomotive Engineers and Trainmen PARTIES TO DISPUTE: ( (Kansas City Southern Railway Company (former (MidSouth Rail Corporation STATEMENT OF CLAIM: "Claim of MidSouth Rail Engineer Shannon Carter for removal of sixty (60) days suspension (30 actual and 30 record) all notations of discipline expunged from his personal work record and compensation for ali time lost as a result ofsame - from December (the date he was removed from service) until January 27, 2006 for the alleged violation of Kansas City Southern GCOR Rule S6.3 and in connection with allegedly allowing his train to occupy a portion of the main track without authority in Jackson, MS at ornearmile Post 89.8 at approximately 10:30am on December 28, 2005 while serving as the engineer on train HARJA-27." FINDINGS: The First Division of the Adjustment Board, upon the whole record and all the evidence, finds that: The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

2 Page NRAB Parties to said dispute were given due notice of hearing thereon. Claimant S. Carter began employment with the Carrier in September 2002 and was promoted to Locomotive Engineer in April The Claimant had been employed by the Carrier for more than three years at the time of the events in the instant matter. A review of the record shows that the Claimant was working as an Engineer on a train travelling from Meridian to Vicksburg, Mississippi. On December 28, 2005, the Claimant was operating a train of 59 cars eastbound into Jackson, Mississippi. The road territory was Direct Traffic Control (''DTC'') territory. When the train entered the Jackson Yard, the Rules required that the DTC authority be released to the Dispatcher. Trainmaster Hauptman was sitting near the eastern entry to the yard in a hi-rail vehicle. Hauptmann was waiting for the Claimant's train to pass so he could place his hi-rail on the track. He overheard the Dispatcher on the radio asking whether the train was in the yard. He also overheard the crew reply that the train was in the Jackson Yard. The Claimant's train was sitting on the Storage Track near Hauptman and part ofthe train was still on the main line. Trainmaster Hanptman conld see that the train was stopped short of Deeb Street. It was stopped there because a road switcher engine was fouling the entry to the yard. The Claimant's train was still outside the yard by about 20 cars at the time that the DTC authority was surrendered. A few minutes passed and the crew then resumed movement into the yard. The Carrier advised the Claimant and the Conductor by letter dated December 29, 2005, to attend a formal Investigation on January 4, The notice stated that an Investigation would be held "... in connection with an incident that occurred on December 28, 2005, at approximately 10:30am. It is alleged that while serving as a crewmember of Train HARJA-27, you occupied a portion of the main track without authority. This incident occurred in Jackson, MS at or near Milepost 89.8 The Hearing was postponed by agreement to January U. The Hearing did not occur and was postponed to January 23, Whether the January 12 Hearing was properly postponed is the subject of the Organization's procedural

3 Form I Page NRAB-OOOOl argument discussed below. The Carrier notified the Claimant in a letter dated January 30, 2006, that the charges had been sustained and he was being assessed a 30 day suspension with five days to be served and 25 days to be recorded and not served. The Organization claims procedural error because the Claimant's disciplinary history was cited in the discipline record, but that disciplinary record was not included in the letter of discipline. The Organization also claims procedural error because the Hearing was not held within the timeframe required by the Agreement. The Agreement contains a specific provision for hearings not held within the Agreement timeframe and that provision requires that the instant claim be granted. According to the Organization, the Agreement has a provision for the parties to agree to a postponement and also that postponements may be requested by either' party - and cannot be unreasonably denied. However, there was no agreement to postpone the Investigation on January 12, Accordingly, it was error for the Hearing Officer to overrule the Organization's objection that the Hearing had not been properly postponed. Further, the Claimant testified that because the counter on the control panel may have been faulty, the crew may have been mistaken as to whether the train bad cleared. After a review ofthe evidence, the Board finds that there were no procedural defects which void the discipline. There is no cited Agreement Rule, Award, or practice in support of the Organization's argument that a disciplinary history must be part of the discipline notice. The Claimant was put on notice of the charges under investigation so as to prepare a defense to those charges. Accordingly the Notice of Investigation was not procedurally defective and the Organization's argument irs rejected. Rule 34, Section B entitled Formal Hearing, discusses the notice requirements in Section 1 (b), which provides: "(b) The notice shall state the date, time and place of hearing is to be held which shall be not less than five (5) days after the date of notification or more than ten (10) days after the date of notification unless otherwise agreed to."

4 Page NRAB-OOOOI Of course, these time limitations can be altered by postponements. Section 1 (b) 3, entitled Postponement of Hearing, provides: "Consistent with the provisions of Section A 1 for a fair and impartial hearing, postponements of the formal hearing may be requested by either party on reasonable grounds and consent shall not be unreasonably withheld." The Carrier contends that, while the Hearing Officer did not go into exacting detail, he did explain that the Hearing was postponed because of a main line derailment on January 12, 2006 in the following: "Ok.... And on the objections, I'm going to go ahead and overrule them and let's hold the hearing. I understand there were some extenuating circumstances with a main line derailment on January 12th. Not that that makes you guys feel any better, but we'll go ahead and hold the hearing and your objections are entered in for the record." The Board sits as an appellate forum in discipline cases. As such, it does not weigh the evidence de novo. Thus, it is not our function to substitute our judgment for the Carrier's and decide the matter according to what we might have done had the decision been ours. Rather, our inquiry is whether substantial evidence exists to sustain the finding against the Claimant. If the question is decided in the affirmative, we are not warranted in disturbing the penalty absent a showing that the Carrier's actions were an abuse of discretion. After a review of the evidence, the Board finds that there were no procedural defects which void the discipline. The Hearing was held more than ten days after the date of the notification. The Agreement specifically states: "The [investigation] notice shall state the date, time and place of hearing is to be held which shall be not less than five (5) days after the date of notification or more than ten (10) days after the date of notification unless otherwise agreed to." The Organization objected to the Hearing because a request for postponement had not been received and the Organization appeared at the January 12, 2006, Hearing.

5 Form I PageS 09-1 NRA]J The Board reviewed the record in the instant matter and finds the Organization's citation to First Division Award 25263, followed by the Board in First Division Award as being helpful to understanding the instant matter. There, like here, two separate Organizations represented parties at the Hearing. One agreed to a continuance, the other did not. The Board found that there was no showing that the affected Organization was given notice or the opportunity to object. The Board found similarly in First Division Award that the record contained no showing of a good cause for postponement. This persuasive analysis was followed by the Board in Award However, the facts of the instant matter are different. In the instant matter, the Hearing Officer stated: ''J[ understand there were some extenuating circumstances with a main line derailment on January izu," The Hearing Officer took judicial notice of what occurred on the property and the Organization did not dispute that a main line derailment had occurred on the scheduled Hearing date. Rule 34 Ifb) 3 provides that ".. postponements may be requested by either party on reasonable ground and consent shall not be unreasonably withheld." The Board holds that on the facts presented in this matter, a main line derailment on the date ofthe Hearing would be a reasonable ground to request a consent and it would have been unreasonable to deny that request. Therefore, this procedural argument is also rejected. The inquiry then turns to whether there is substantial evidence in the record to support the findings. The Board finds that there was substantial evidence in the record to uphold the Carrier's position. The Board's review of the record shows that the Claimant's train was occupying the main track without authority after the DTC was surrendered with nearly one-half of the Claimant's 59 car train still on the main track. Whether the train counter device was properly functioning or not was resolved by the Hearing Officer, and we defer to that finding of fact. The record establishes that although the head end of the Claimant's train was on the Storage Track, more than 20 cars were beyond the limits of the yard and on the main track. The Board also finds that the imposed discipline was not an abuse of the Carrier's discretion forthis short-time employee. The Board finds that substantial evidence exists to uphold the finding against the Claimant.

6 Page ~ OOOOI AWARD Claim denied. ORDER This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimantts) not be made. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of FirstDivision Dated at Chicago, Illinois, this 5th day of February 2009.