Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43842 Docket No. MW-45252 19-3-NRAB-00003-190040

The Third Division consisted of the regular members and in addition Referee Erica Tener 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 [two (2) day suspension] of Mr. C. Castellano, by letter dated February 6, 2018 based on allegations that he violated Pan Am Safety Rules P-66 and PGR-J in connection with the work head on the tamper becoming dislodged during travel and striking a bridge girder on June 7, 2017 was without just and sufficient cause (System File 18-01/MW-18-06 STR).

(2) As a consequence of the violation referred to in Part (1) above, Claimant C. Castellano shall now be exonerated of all charges, his record cleared and compensated for his two (2) day suspension with straight time and overtime he missed as well as any missed benefits that he may have suffered because 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.

On June 15, 2017, the Carrier issued a notice of hearing to Carlos Castellano (Claimant):

"This Notice of hearing is issued to develop the facts and place your responsibility, if any, in connection with the incident(s) outline below:

POTENTIAL VIOLATION OF SAFETY RULE(S) PGR-J & P-66

On Wednesday, June 7, 2017, at approximately 0945 hours while acting as Tamper Operator on Zone C Surface Crew #2830 in the vicinity of MP308.8 on the Freight Main Line, you struck a bridge girder with the tamping head after it had allegedly been dislodged during travel."

After numerous postponements, the Investigation was held on January 23, 2018. TheClaimantwasfoundresponsiblefortherulesviolationsaschargedandwasassessed a two (2) day suspension. The Organization filed an appeal on the Claimant's behalf and the matter was handled according to the Parties' Agreement. This matter is now properly before this Board for final adjudication.

Charging Officer, Mike Curley, testified that on June 7, 2018 at approximately 9:45 AM, the Claimant, while operating the tamper, struck a bridge girder with the tamping heads. Curley reported that prior to the incident, the employee checked the equipmentanddeemeditacceptabletotravel.Curley testified,iftheClaimantinspected the equipment in a walk-around and used common sense while performing his duties, the incidentwouldhave beenavoided.Curley testified the Claimant's negligence caused him to violate Carrier Rules PGR-J and P-66 which are as follows:

"PGR-J:Employeesmustbeobservantandusecommonsenseatalltimes.

P-66: Before track cars are used, an inspection must be made to ensure that they are in safe operating condition."

The Claimant testified that he did a walk-around. In addition, because he was aware of prior issues with the locking mechanism, the Claimant testified that he generally takes extra precautions when traveling long distances. The Claimant also discussed his knowledge about Carrier attempts to remedy the lock malfunctions.

The Carrier argues it presented sufficient to meet its burden to prove the Claimant violated the rules as charged. This Claimant has ten years of experience operating the tamper and should have taken all necessary precautions to prevent damage to the equipment. The Claimant alleges that he tends to take precautions. However, on this date, the Carrier argues he did not. If he had this incident would not have occurred.

The Organization argues the Carrier failed to prove the Claimant violated Rules PGR-J and Rule P-66.It argues there is no proof that the Claimant failed to do thewalk aroundasallegedbythechargingofficer.Thisargument,theOrganizationassertsholds trueforbothoftheRulesviolationscharged.TheClaimantsaidhetookallthenecessary steps to ensure safe operation of his equipment.

The Board has reviewed the record and finding no procedural objections will discuss the merits of the case.

The evidence of record establishes the Carrier presented sufficient evidence to prove the Claimant violated the rules as charged. The Claimant has an obligation to ensure all equipment he operate is in good working order. If he had any questions or concerns about any of his equipment, he has a responsibility to address them with the proper authority. He admits he did not raise any concerns about the equipment during his shift on June 7, 2017.

For these reasons the Board must deny the claim.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 4th day of September 2019.