NATIONAL MEDIATION BOARD PUBLIC LAW BOARD N{). 'T()48 AWARD NO. 139, (Case No. 89)
.11()01) OF MAINTENANCE OF WAY
EMPLOYES DIVISION - IRT RAIL CONFERENCE
13N;4F RAILWAY COMPANY
William R. Miller. C'hairlnxtn & Neutral \-lernber
 Samantha Ko~,crs. ('arrier Member
 ()avid I ). tanner, t:rriployc e kic:nther
STATEMENT OF C,'LA1M:
"Claim of the System Committee «f the Brotherhood that.
1. The Barrier violated the Agreement commencing.Iuc 28, 2010, when Claimant, Charles W. Hall (64'79'7#5), was issued a Level S 30-clay Record Suspension with 1 year review period, and relinquish his Track Inspector rights for 1 year for his failure to Properly detect and protect track warp condition while conducting track inspections resulting in a train derailment on.luly 3, 211111. The Carrier alleged violation of E I 2.1 Purpose of Track Inspection, E1 2.2.3 Responsibility of Track Inspectors and Ell 5.5.3 Defect and Definition and Limits.
A: a consequence of the violation referred to in part 1 the Barrier ;hall remove from the Claimant's record this discipline and he hr compensated for his last time and expense and otherwise made whole." (Carrier File Nor. l4-1tJ-tllfi9) (Organization File No. 2(1-1302-1i13.t.`I,M)
2,
FINDINGS:
Public (,taw Board No. 7()48. upon the whole record tend all the cvicfience, (irtc3s and holds that l.:ntploy°ce and C'arrier are employee and carrier within the meaning of the Railway Lahor filet as amended: and that the Board has jurisdiction over the dispute hcrein* and that rite parties tax the dispute have participated in accordance to the Agreement that established the 13oard,

 On Julv X< 20 10, Claimant was directed to attend a formal In,~ cstigation can JLIN 14, :.,'tai(). E0ich was mutually postponed until July l9. 2010. concerning in Pertinent dart the (~ollt>w-ing chucru,e
P.L.E3. No. 7048
Award No. ?39, Page 2


On AuQUSt I?. ?f)iti_ Claimant was notified that he had been found guilty as charged and assessed a Level S >0 Day Rcc:orc3 Suspension with a relinquishment o(' t rack Inspector rights for oncve<rr with a one vear review period.

 It is the Organization's position that the Carrier did not cneet its burden of` prcoI`. 1t stated that the tc;ts indicate a train derailment occurred can July 3), 20311, at Milepost 44=a.9 mainT mhich is dart crf'the Claimant's territory as a regularly assigned Track Inspector. there are three main tracks throughout this location which have a large volume oftraffic including

 approximately 30 heavy coal trains a day. )'ricer to the derailment the

 three inspections tit this location on June 2, ?8 and July i. ?iJi(). at which time lie took measurements, Each inspection according to it revealed that everything was in compliance with the speed of the track according to ill BNSh ad FRS Rules and Guidelines. It asserted that this .vas newly constructed track and ( 'lairrtani was concerned that even though the track was in compliance for 40 PEA there was some weakness ire the foundational grcsuci. It argued the Claimant had been watching this location and had itbrred the i2oadmaster Kevin Bristow that it was weak and needed some surfacing and tamping work which was acknowledged by Bristow in his testimony at the f)c:arin. It further argued that the FltA and the Carrier set standards and ,~s long as the track is within those standards. the Policy is "don't slow them clown ". whic:h is )Ahat the Claimant followed. It reiterated that on the last inspection oi'Jtaiy Ist. everything remained in compliance and on July 3rd more thin 60 loaded he;ivy coals hacl moved saver the location with no issues prior to the derailment. It closed by requesting that the discipline he rescinded and the claim he sustained as presented.
a derailment on Jetty 3, ?()1(). causing total damages ire excess o1-.> million dollars. it arguecl that
 Claimant mss assigned as a Track Inspector and it was his responsibility to perform thorough
 inspection ofthe truck and e is responsible fior taking te prc>Priate action to either make the
 necessary repairs or put a slow order on the track ensuring the trains are traveling at a less than
 normal speed. it asserted that the record reflects that there was a ? 1/2 inch warp on the truck the
 C.'laicriant inspected cart July tst %t he did not put a 10 mph slow order on it. It further argued
 that the Claimant admitted that the track should hive en slow ordered. It concluded by asking that the discipline not he disturbed nd the claim remain denied.

 C" use Na. X39



The Board has thoroughly reviewed the transcript arid record ofevidcnce and has determined that the lntcstitvatian was held in accordance with Rule i3(a) the Discipline Rule and :Appendix No. 11.

 l'he record re-,xals that on page 34 of the transcript the Claimant testified that after the derailment he measured the track anti found the worst spot to he: 2 (./' inches and that it needed a -,iow% order of 1() niph.

 File Carrier argued that the Claimant admitted he should 11,1-VC put a slow order oil the track in dispute on page 35 ofthe transcript. however. examination ol~ that testimony repeals that he curt:; questioned about the FRA's measurement ofthe track after tile derailment. The l`RA measurement was 2 Il9 and tic stated that according to that measurement there should have been a slow order, lout tic went on to testify that on July l st at his last inspection the measurement was two inches and there was no need for a slaw order. I lowever. on page -f l of the transcript, the questioning of the Claimant continued as follows:

    "Michael Heillet I've got a few mare questions, Mr. Hall, You, you said somewhere thereabouts around .June 25th you gave the surfacing gang a list to go surface, is that right?


      Charles W. hall: Yes, it was the following Monday after the 20th.


      Michael Heille: The following Monday after the 20th. You gave them a list. You wanted this area surfaced, correct''


      Charles W. Hall: Correct.


      Michael "eille: You already stated this was an area of concern for vou, right`!


      Charles W. Hall: Yes, it was on the threshold.


      Michael Heille: So it was on the threshold and it didn't act tamped that day, is that right`!


    Charles W. tfiall: Correct."


On page 4 7 of the transcript the Clairnant again testified he knew that the location of the derailment on July }, 2010. was borderline and/or on the threshold f<ir the issuance of~a 10 mph glow, order anti that coupled with the fact that the Claimant had been concerned about that site since June 20th substantiates that he should have issued a slow order for that area prior to July 3. '0lt). Substantial evidence was adduced at the Investigation that the Claimant was guilty as c harped.
 P. t.. t3. No. "l()48
 Award No. 89, Case No. 89
 Page 4

 The only issue remaining is whether the discipline was appropriate. At the tine of the incident Claimant had approximately 3-1 years ot~scrvice with a good work record. ho,.kcver_ the violation in this instance was a serious matter, therefore, the Level S ;t)-Day- Record Suspensi0l) will not he set aside as it vas in accordance with the C'arrier's Policy for Fmpioyee t'erformancc Accountability WFl'A) and it .%.as not excessive. arbitrary or capricious. ['he claim will remain denied.

 AWARD
Claim denied.

 William It. Ntilfer. Chairman & Ncu6al Member

 Samantha Rogers. ('arrit vernber

 sward Date: ~~°>

 David (). Tanner. LtnpIwlLc Member