The Claimant, a Track Foreman with more than 23 years of seniority, was in charge of a small track gang on the 7:00 A.M. to 3:00 P.M. shift on June 24, 2002. When the gang finished work for the day, the Claimant knew that additional work would be required on the switch/turnout the following day, when his gang was scheduled to return to complete the project. Before leaving the work site on June 24, the Claimant ensured that the track area and adjacent road were free of obvious obstacles.
The following day at about 10:30 A.M., Assistant Production Engineer J. C. Majeski stopped by the area where the Claimant's gang had been working. He noticed that the Claimant was in a vehicle, his gang was not working, and debris, including cups, stones left in piles and bolts and anchors, had been strewn all about the area. When Majeski asked the Claimant to get the debris cleaned up, he immediately did so.
By letter dated July 1, 2002 the Carrier notified the Claimant of an Investigation on July 10 to determine his responsibility, if any, in connection with his alleged failure to comply with Engineering Department Instructional Notice - Clean Up, which provided in pertinent part:
Following the Investigation, which was postponed until August 12 at the Organization's request, the Carrier notified the Claimant by letter dated August 23, 2002 that he was assessed a 60-day actual suspension. In a letter dated September 4, 2002 the Organization appealed the discipline. The Carrier denied the appeal, and, because the parties were unable to resolve the dispute on the property, it was submitted to the Board for final and binding resolution.
In response to the Organization's contention that Assistant Supervisor L. H. Gonzales instructed the Claimant not to do a thorough clean-up until a project was finished and, in the meantime, to push debris aside at the end of each day, the Carrier argues that the posted Clean-Up Notice was intended to supersede oral instructions like those from Gonzales. Moreover, the Carrier urges that it was for the Organization to call Gonzales as a witness to support its defense. The Board disagrees. The Claimant testified credibly that Gonzales bad instructed him to direct his gang to perform a thorough clean-up only at the end of a project, and to ensure only that the track and adjacent road were clear at the end of the day if the project had not been completed. In order to satisfy its burden of proof, it was incumbent upon the Carrier to produce Gonzales as a witness to rebut the Claimant's testimony. In the absence of such a rebuttal, the Board concludes that the Claimant reasonably followed Gonzales' instructions, ensuring that the track and adjacent road were clear of debris at the close of the day on June 24, 2002.
Because the Carrier failed to satisfy its burden of proof, the Board sustains the claim. Accordingly, the Carrier will be required to pay the Claimant backpay covering the 60-day suspension and to expunge from his personnel record all reference to the suspension. Because the Claimant's August 23, 2002 discharge was upheld in a companion case (Third Division Award 37487) there will be no order of reinstatement.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.