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.
On May 7, 2010, the Claimant was operating a rotary dump truck as assigned along a gravel access road built and maintained by the Carrier. The access road was located between the Carrier's tracks and a ditch, which dropped off approximately eight feet from the road's surface. While driving and maintaining no more than the two feet of clearance that was maximally afforded him from fouling the track ballast on the side of the road, the Claimant realized that the road underneath the truck on the passenger's side was beginning to give way under the weight of the truck. The Claimant's efforts to steer away from the crumbling embankment proved futile and he decided to turn the truck toward the ditch in an attempt to minimize any damage. The truck fell to the bottom of the ditch and landed on its passenger side. The fall resulted in no injuries, and damages which the Carrier valued at approximately $1500.00.
By letter dated May 11, 2010, the Carrier directed the Claimant to report for a formal Investigation on May 21, 2010. The Notice of Investigation specified that said Investigation would be held:
The Investigation was postponed by mutual consent and was finally held on June 9, 2010. By letter dated June 28, 2010, the Carrier notified the Claimant as follows: Form I Award No. 41527
The Carrier contends that the Claimant exhibited carelessness, as well as a failure to be alert and attentive and, as a result, he drove the truck off of the embankment. The Organization contends that the Carrier's case is built on mere supposition. It asserts that there is no proof that the Claimant was anything but alert and attentive to his duties, and that he proceeded with care in the performance of the work assigned to him, i.e., driving the rotary dump truck along the access road. The Organization further contends that the Carrier's entire case is based on its assumption that because the accident occurred, the Claimant must have violated a Rule.
According to the unrefuted testimony in this case, the Claimant had traveled down the access road earlier the same day without incident. However, on the second such trip, the Claimant felt the roadway giving away and he took action as quickly as possible to minimize any damage that might occur to the truck. The sole Carrier witness at the Investigation was not, in fact, a witness to the accident. His testimony consisted of the conclusions that he had reached as a result of his survey of the scene after the accident had occurred. While a post-accident inspection does not rule out reaching certain conclusions borne out by the physical evidence, the Carrier could not point to any physical evidence in this case that would support its narrative and its conclusion that the Claimant must have been careless and could not have been alert and attentive when the accident occurred. The Board's thorough examination Form I Award No. 4152'7
of the on-property record revealed no probative evidence that the Claimant violated any Carrier Rules.
In disciplinary matters, it is well-established that the burden rests with the Carrier to prove the charges against the employee by substantial evidence. For the reasons explained above, we find and hold that the Carrier failed to meet its burden of proof. Accordingly, the claim must be sustained.
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.