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, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
After an Investigation on November 17, 1998, the Claimant was dismissed from service based on the Carrier's determination that he struck a power line while working without a groundman on September 24, 1998 and failed to report the incident to Carrier Officials. At the time of his termination, the Claimant had been employed by the Carrier since August 1978.
According to the transcript, Roadmaster T. Swalboski received a telephone call from the Superintendent of the Lake Park City Public Works Department on October 20, 1998, informing him that the City's power lines had been damaged by one of the Carrier's cranes on September 24,1998. The Roadmaster testified that he had been on vacation when the alleged incident occurred, so he contacted the other Roadmasters on the territory covering Lake Park, Minnesota, to determine if they had been informed of the power line incident on September 24. None had received reports of a crane striking the City's power lines.
After investigating further, the Roadmaster learned that the Claimant was operating a Locomotive Crane picking up scrap at the time and location in question. Indeed, the Claimant admitted at the Hearing that he struck a cable line which then hit the power lines. He acknowledged that he was operating the crane without a groundman. He further conceded that he never reported the incident to his supervisors. A Notice of Investigation was issued on October 21, 1998.
Based on the evidence adduced at the Hearing, the Carrier contends that the Rule violations were proven and that dismissal was fully justified, particularly in light of the Claimant's prior disciplinary record. The Organization maintains that the dismissal was improper for several reasons, each of which will be addressed in turn by the Board. Form 1 Award No. 35969
As a preliminary matter, the Organization argues that the Carrier violated Rule 40A of the Agreement by failing to set the Investigation within 15 days from the date of the occurrence. It contends that the Carrier scheduled the Investigation to commence on October 30,1998, more than 15 days following the incident on September 24, 1998.
The Board is not persuaded that the Organization's position has merit. The language of Rule 40A provides as follows:
The foregoing provision clearly contemplates that not all occurrences will be discovered at the time they happen. Accordingly, the Carrier is allowed 15 days to set an Investigation either from the date of the occurrence, or, where the employee's personal conduct is at issue, within 15 days from the date the Carrier receives information about the occurrence. The language of Rule 40A recognizes that the Carrier cannot be expected to schedule an Investigation until it is aware of an incident or occurrence upon which an Investigation can be based.
The Organization argued that the 15-day time limit began to toll on the date of the incident because the Dispatcher was notified that trains passing through may have to slow down after the power lines in the area had been damaged. However, a Train Dispatcher is not an officer of the Carrier. Rule 40A plainly states that it is an Officer of the Company who must be the recipient of the information.
Nor do we agree with the Organization that common sense and logic dictate that Carrier Officials knew of the incident. In the Organization's view, experience teaches that Carrier Officials know what occurs under their direction, and they most certainly would have known about a power outage that affected the City of Lake Park for many hours that day. While that argument has a certain appeal on its face, the Board must base its findings on evidence rather than unproven assertion. In the absence of any testimony or probative proof that a responsible Carrier official had knowledge of the occurrence at any time prior to October 20, 1998, we must conclude that the Form 1 Award No. 35969
Organization's timeliness objection must be rejected. A Notice of Investigation was issued on October 21, 1998, the day after the Roadmaster first learned of the incident, in compliance with Rule 40A.
Careful review of the Organization's remaining procedural arguments suggest that they, too, are without merit. Nothing in the Agreement prohibited the Division Engineer from signing the Notice of Discipline or required that only the Conducting Officer might do so. No showing of actual prejudice or deprivation of a fair and impartial Investigation has been made on this record, and therefore there is no basis for holding that the Claimant's rights were violated. Additional arguments not advanced during the handling of this claim on the property have not been considered by the Board, because we are without authority to entertain new bases for appeal at this level.
On the merits, the Board concludes that the charges have been proven by the record evidence, including the Claimant's own testimony acknowledging the misconduct alleged. See Third Division Awards 20250, 22740, 33446.
The Organization's exculpatory arguments are unfounded. Essentially, the Organization argues that other employees had knowledge of the power outage, yet only the Claimant was disciplined. Of the two employees referenced, one was a Foreman who was not at the site of the Claimant's accident. Moreover, there is no clear evidence which shows that he was informed of the accident after it happened.
The other employee, Flagman D. Morlock, testified that the Claimant notified him of the accident and said that he was going to report the matter himself. The Claimant testified that he assumed Morlock would notify Carrier officials because he had a cell phone. It is not within the province of the Board to resolve the credibility conflict in the testimony. That function was properly conducted by the Hearing Officer and he concluded that Morlock's testimony was more credible than the Claimant's. We have no basis to interfere with that determination.
In short, the Organization's defenses fail to exonerate the Claimant from culpability for his actions and not reporting the accident. That being the case, the only remaining question is whether the penalty imposed falls within the range of discretion afforded to the Carrier in discipline matters. The Claimant's negligent actions amounted to significant violations of the Carrier Rules. Moreover, his disciplinary record shows that this is his fourth offense within a three-year period. Under the Form 1 Award No. 35969
Carrier's Policy for Employee Performance Accountability, that sort of record indicates that progressive discipline has not been successful in eliminating further disciplinary occurrences. Thus, while the Claimant is a long-term employee, his overall record and the serious nature of the proven misconduct in this case outweigh longevity as a mitigating factor. The claim must therefore be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.