Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42883 Docket No. MW-43671 18-3-NRAB-00003-160450

The Third Division consisted of the regular members and in addition Referee I.

B. Helburn when award was rendered.

(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference

PARTIES TO DISPUTE: (

(Springfield Terminal Railway Company

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The discipline [five (5) calendar day suspension] imposed upon Claimant G. Mazzantini by letter dated September 18, 2015 for alleged violation of PGR-J and P-83 and for allegedly being negligent in connection with damage to a junction box for the power switch at MPS-2 (CPR-2) near Springfield, Massachusetts on June 8, 2015 was without just and sufficient cause and in violation of the Agreement (Carrier's File MW-15-36 STR).

(2) As a consequence of the violation referred to in Part (1) above, Claimant G. Mazzantini shall have the discipline removed from his record and shall be compensated for all losses of pay and benefits as a result of the Carrier's improper discipline."

FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

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.

Parties to said dispute were given due notice of hearing thereon.

The Claimant had 35 years' seniority with no prior discipline at the time of the suspension noted herein. On June 8, 2015, he was assigned as a Foreman overseeing Tamper Operator Sanderson, who was operating a Production Tamper 10-6-10 that had been in service since approximately 1981. Foreman Mazzantini was assisting on the ground. While operating in a manual mode, supposedly with no command or input from Operator Sanderson, the tamper head dropped to the ground crushing a switch junction box. The Carrier was informed of the accident the next day and ordered the chassis, the brain of the machine, replaced. It had been previously replaced as well. The Claimant was directed to attend a hearing due to his alleged failure to be observant, to use common sense and to be aware of structures or obstructions. Thereafter the Claimant was found to have violated Safety Rules PGR-J and P83 and was assessed a five day suspension. A timely claim followed.

The Carrier contends that the evidence shows that but for the Claimant's negligence the tamper would not have hit the switch box. The common sense and caution necessary to avoid the damage was missing. Prior to June 8, 2015 the tamper had been used on other projects without evidence of mechanical failure. The statement attached to the appeal by the Organization had not been introduced during the hearing and therefore should not be considered by the Board. Evidence developed at the hearing shows that the Claimant violated PGR-J and P83 as alleged. The suspension was appropriate given his 35 years of experience.

The Organization asserts that the Carrier has not proven the charges. An accident does not equal a rules violation. The unchallenged testimony of the Claimant and Tamper Operation Sanderson was that the tamper was operated as in the past and that they had previously tamped around MPS-2 (CPR-2) without problems. This time the tamper unexpectedly moved on its own. Testimony that there were prior issues with the tamper was not rebutted. The discipline was arbitrary, excessive and unwarranted.

This is a case in which the Safety Rules allegedly violated were included in the hearing notice, which was appended to the hearing transcript. Therefore, there are no grounds for an Organization assertion that the hearing notice was defective or that the Claimant's due process rights were violated, nor were such assertions made.

The Carrier believes that substantial evidence shows that the Claimant failed to exercise common sense and caution in response to unfavorable conditions, while the Organization asserts that the junction box damage resulted from the spontaneous movement of the tamper head. If the photos entered as exhibits by the Carrier would have shed light on the matter, the poor quality of the photos in evidence herein removes any value they may have had. Also of no value is the statement of Mr. D. C. Griffiths that was attached to the Organization's October 10, 2015 appeal of the suspension. It was not made a part of the on-property hearing record and therefore was provided too late to be considered by this Board. Providing "evidence" to which the other party has had no chance to respond to is simply another form of trial by ambush.

The Board has considered the uncontradicted testimony that previously there had been issues with the tamper chassis or brain that caused the machine to act erratically and that the day after the junction box incident, the chassis was again replaced. While the Carrier notes that the tamper had been operable before the junction box was disabled, the Board views the decision to replace the chassis as evidence of the Carrier's belief that there was a possibility that the machine was at fault. Therefore, the Carrier has fallen short of the substantive evidence necessary to have the claim denied. The Board sees no need to comment on the many cases provided by the Organization, except to note that they involved different fact situations and thus were not on "all fours" with the facts considered herein. The claim is sustained in accordance with Articles 26.5 and 26.7. Compensation is to include any overtime that the parties find that the Claimant would likely have worked but for the suspension.

AWARD

Claim sustained.

ORDER

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.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 10th day of January 2018.