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.
The Claimant established and held more than 16 years of seniority in various classifications within the Maintenance of Way and Structures Department. On November 9, 2005, the Claimant was assigned and working as a Group 3 Machine Operator within the Roadway Equipment Sub-Department operating an on-track spiker on Production Rail Gang RP 10. On November lI, 2005, the Claimant was notified to attend an Investigation into his ". . . alleged failure to operate Spiker BNX 4400346 safely which resulted in work heads striking the ties, at approximately 1430 hours and [his] alleged failure to maintain a safe braking distance at approximately 1445 hours, when Spiker BNX 4400346 struck Spiker BNX 4400351 which resulted in approximately $8000.00 damage . . " on November 9, 2005. After a Hearing, the Carrier found the Claimant guilty of the charges, and dismissed him for violating Operating Rules 6.51, Maintaining a Safe Braking Distance, and 6.50.3, Equipment Components Clear. The discipline letter specifically noted that the Claimant's prior record had been taken into consideration.
The Organization contends that the Carrier failed to meet its burden of proof, relied on assumption, speculation, and unproven allegations, and imposed discipline that was excessive, capricious, and improper.
The essence of the Organization's position is that the Hearing Officer and the Carrier made mistakes in evaluating the facts of the two incidents. Rule 6.50.3 requires that the employee be sure all equipment components will clear before passing over crossings, switches, derails, and frogs. Although the Claimant testified that he followed standard procedure in preparing his machine for on-track travel, and had reported to Mechanics a previous problem with heads bleeding down on his machine, he admitted that he had not gotten down to inspect his machine prior to movement to see if the heads were all the way up. The Carrier concluded that the Claimant failed to properly lock the spiker's work heads, based on the evidence of the Work Equipment Supervisor who interviewed the Mechanics who had inspected and worked on the machine immediately Form 1 Award No. 39473
following this incident. According to the Mechanics, the heads had been locked for traveling before they had risen to the proper height, which caused them to "bleed" down to the point of impact. While the Organization complains that the Carrier is relying on nothing other than "speculation, assumption, or conjecture," its conclusions are a reasonable evaluation of the nature of the equipment and the circumstances of the accident. As in Third Division Award 32758:
Here, the Hearing Officer was entitled to assess the credibility of the Claimant's accounts and explanations as to how the accidents happened, and that assessment is not within our power to set aside. The Claimant had not inspected the heads after locking them, so his own suggestion that there had been a mechanical failure was itself speculative. Accordingly, it was within management's discretion to discredit that theory and credit the Mechanics' explanation that the first accident was the result of the Claimant's negligent failure to lock the heads properly.
The Organization asserts that the Claimant should not have been found responsible for the second incident because the Mechanics' failure to properly secure the damaged assembly, in their rush to get the machines moved, caused it to shift, which in turn distracted him and interfered with his ability to apply the brakes, resulting in the collision with the machine ahead of his. However, the Board cannot fend unreasonable the Carrier's conclusion that because the Claimant failed to brake in time to prevent the collision, he necessarily failed to maintain a safe distance between the two traveling machines, in violation of Operating Rule 6.51. The distraction of the slipping assembly does not excuse him from responsibility to operate his equipment safely.
Finally, the Organization contends that the penalty of dismissal of the Claimant was excessive in light of the nature of the offense and his 16 years of service. Under the Carrier's Policy for Employee Performance Accountability, two serious Rule offenses Form 1 Award No. 39473
within a three-year period will result in dismissal. The Claimant had served a Level S record suspension of 30 days and was on a three-year probation for sleeping on duty on August 29, 2003. (See Third Division Award 38957, upholding that discipline.) Thus the November 9 events were the second Level S violation within three years.
Once an offense is proved, we are not warranted in disturbing the penalty unless it appears from the record that the Carrier's actions were unjust, unreasonable or arbitrary, so as to constitute an abuse of management's discretion. See Third Division Awards 16166 and 37426. In this case, the record supports the Carrier's conclusion that the Claimant violated Operating Rules 6.50.3 and 6.51 on November 9, 2005, his second Level S offense within three years. These were significant failures to follow Rules intended to protect the safety of employees and property. In light of the Claimant's record and the nature of the offenses, the Board cannot say that the dismissal was excessive, unjust, unreasonable, or arbitrary, and we will not overturn it.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.