This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
On May 6, 2005, the Carrier directed the Claimant to report for a formal Investigation on May 13 that was mutually postponed and held on September 23 concerning the following charge:
The Rule in dispute is Metra Employee Conduct Rule "N," Paragraph No. 3, Item No. 2, which states the following:
On October 3, 2005, the Claimant was notified that he had been found guilty as charged and was assessed a three work days' deferred suspension.
It is the position of the Organization that there is nothing in the record which demonstrated that the Claimant was negligent. Instead, it shows that he was involved in an unavoidable accident wherein he had no control over the ballast conditions that caused the plow to slide and hit the truck. Based upon those conditions, and the fact that the Claimant had a very good work record, it argued Form I Page 3
that the assessed discipline was unwarranted. It concluded by requesting that the discipline be set aside and the claim be sustained as presented.
It is the Carrier's position that the accident could have been avoided if either the hyrail vehicle had been moved farther from the area where the plow was being operated, or the trencher had been moved from the main line to the siding at a point further away from the truck. It points out that the Claimant was asked during the Investigation if he could have moved the trencher/plow from the main track to the siding track at a different location and he responded by stating "Yes." It further argued that the Claimant could also have requested the BMWE employee to move the truck before he started using the trencher if he did not believe that he had enough area to work in. It concluded by stating that the accident was avoidable and asked that the discipline not be disturbed.
The Board thoroughly reviewed the transcript and record evidence which substantiates that on the date in question, the Claimant's crew was assigned to install cable between the main line and siding between Mile Pole 35.84 and Mile Pole 36.06 on the Southwest Service. The main line and siding are at different elevations (a difference of about two feet). The Claimant was operating a cable plow (trencher/plow) leveling out ballast to prepare the area. As he crossed over from the main line to the siding to get in position to plow ballast off of the siding, the plow started to slide on the ballast. The plow at the back of the machine swung and struck Hyrail Vehicle No. L0859 which was parked on the side. The hood and left front fender of the truck were damaged as a result. It is clear that the accident could have been avoided by either moving the truck or having crossed the track at a different location with the trencher. The record is clear that the Carrier met its burden of proof that the Claimant was guilty as charged.
the time of the incident the Claimant had 37 plus years of seniority with only two minor offenses on his record. Therefore, the Board finds and holds that the discipline was excessive. It will be reduced to a Letter of Reprimand.
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.