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.
At the time of the incident on October 12, 2000, Claimant C. A. Fullmer was assigned and working as a Trackman under the supervision of Track Supervisor D. R. Rohweder. The Claimant has been employed with the Carrier since 1976. The Claimant incurred discipline several times since March 1996 that involve safety, poor work performance and a violation of the Carrier's drug policy.
On October 12, 2000, the Claimant was operating a truck following a ballastcarrying front-end loader operated by D. Bjorlin. Bjorlin noticed that Foreman J. Olsen had blocked the path ahead and was signaling to Bjorlin the location to place the ballast. Bjorlin stopped, placed the front-end loader in reverse, and backed up to a road crossing so that he could get to the point where the ballast was to be placed. Bjorlin intended to cross over the tracks and follow an alterative route to the drop site.
The Claimant saw the front-end loader stop, noticed the back-up lights illuminate and observed the loader approaching her truck. She attempted to put the vehicle in reverse, but could not move fast enough to avoid a collision. At the Investigation, Bjorlin said he looked before moving in reverse, but did not see the Claimant. Bjorlin said he had no idea the distance he traveled in reverse prior to striking the Claimant's truck. He indicated that he was not moving very quickly because his air bags would ordinarily deploy at five m.p.h. and in this case, did not do so.
By letter dated October 16, 2000, the Carrier directed the Claimant to report on November 2, 2000 for an Investigation. The Claimant was charged with "failure to operate a DM&IR truck, vehicle 411, in a safe manner resulting in a collision Form I Award No. 37356
with a DM&IR front-end loader in an October 12, 2000, incident at Steelton." The Investigation took place as scheduled.
In a letter dated November 10, 2000, the Carrier notified the Claimant that she had been found guilty of violating the Carrier's Operating Rules because ". . . the vehicle you were operating was struck and damaged by a front-end loader at Steelton Yard." The Claimant was assessed a 15-day suspension for her transgression.
The Organization claiims that the discipline imposed upon the Claimant was unwarranted, harsh and excessive. It contends that the burden of proof in a discipline matter such as this is on the Carrier and that burden has not been met. While the Organization concedes that the Claimant was involved in said accident, it is the Organization's position that the accident was caused not by the Claimant, but rather by Bjorlin, who admiitted that he had not been looking behind him when he struck the Claimant. According to the Organization, the Carrier should now be required to clear the Claiimant's record of any mention of the incident, to compensate her for all of her lost wages, including lost overtime, and to make her whole for vacation, holidays and seniority.
Conversely, the Carrier takes the position that it met its burden of proof. The Claimant was afforded a fair and impartial Investigation in accordance with the requirements of the Agreement. The Carrier considers the Claimant guilty as charged. According to the Carrier, a review of the transcript developed during the Investigation makes it clear that the Claimant was following Bjorlin too closely, thereby causing the accident.
In discipline cases, the Board sits as an appellate forum. We do not weigh the evidence de novo. As such, our function is not to substitute our judgment for the Carrier's, nor to decide the matter in accord with what we might or might not have done had it been ours to determine, but to rule upon the question of whether there is substantial evidence to sustain a finding of guilty. If the question is decided in the affirmative, we are not warranted in disturbing the penalty unless we can say it appears from the record that the Carrier's actions were unjust, unreasonable or arbitrary, so as to constitute an abuse of its discretion. See Second Division Award 7325 and Third Division Award 16166. Form I Award No. 37356
If there is a conflict in testimony, the Hearing Officer is charged with making determinations of credibility, as was the case in the instant matter. Unless it can be shown that the Hearing Officer's determination was arbitrary or capricious, the Board may not substitute its judgment. See Special Board of Adjustment No. 910, Award 763 wherein it was held:
In the instant case, after a review of the evidence, the Board finds that there was substantial evidence in the record to uphold the Carrier's position. The Carrier proved that on October 12, 2000, the Claimant was operating a truck and following a front-end loader too closely, thereby causing an accident in violation of Maintenance of Way Operating Rules and the Engineering Rule Book. While there is a conflict in the testimony, the Board cannot find that the Hearing Officer's determination was arbitrary or capricious and will not overturn such determination.
Further, we find that the 15-day suspension was reasonable and we will not disturb it.