On February 5, 2009, Claimant was assigned to perform flagging service for a bridge contractor in the Vicinity of Dawson Springs, Kentucky. When the work was ready to begin, Claimant directed the contractor's employees to move their equipment out of the Wye track. Once out of the track, it was discovered that one of the trucks had a fuel leak. Consequently, he directed that all of the equipment be returned to the wye track. When the equipment had cleared the switch, Claimant placed a derail on the wye track to protect the equipment. He did not, however, realign the switch back for the siding.
The operator of a pickup truck asked Claimant if he could move the truck from the siding to the main line. Claimant told the operator to get ready for the move, but did not line the switch. The operator moved the truck, apparently before Claimant told him he could do so, causing the truck to run through the switch. Rather than report the switch being run through, Claimant contacted a trackman to repair the switch. The trackman then reported that the switch had been run through.
Claimant was subsequently directed to attend a formal investigation at which he was charged with authorizing the contractor to operate through the switch and failing to report the incident.
At the outset, both the Carrier and the Organization have raised procedural objections. The Carrier argues the claim, when first filed by letter dated May 20, 2009, was presented to the wrong official. The claim was addressed to Vice President Transportation & Labor, G. 1. James, but the Carrier asserts it should have been presented to AVP/Chief Engineer G. F. Gupton. The Organization contends the claim was not denied within the sixty day time limit.
With respect to the Carrier's objection, we note that when the claim was later properly progressed to Mr. James, he responded by stating, "The Organization filed the initial claim/appeal with the improper Carrier Officer committing a fatal error of which the Carrier took no exception at the time but hereby notifies the Organization that it reserves the right to do so at a later date." We take this statement to be a waiver of any objection the Carrier might have had. We will, therefore, give it no further consideration.
As for the Organization's objection, we note the Carrier has asserted Mr. Gupton responded to the initial claim by letter dated June 30, 2009, a copy of which is part of the record before this Board. We accept the Carrier's assertion that the denial was mailed, and it appears that the Organization, in a letter dated May 19, 2010, advised the Carrier that it had been sent to an incorrect address. We note that the initial claim letter did not have a mailing address for Vice Chairman Petty, who filed the claim. We can only presume that the Carrier sent it to his address of record. Under the circumstances, we cannot make a determination that the Carrier failed to issue a timely denial of the claim.
Turning to the merits of the case, we note that the letter assessing the discipline to Claimant stated:
It is apparent, therefore, that Claimant was not disciplined for authorizing the move through the switch, but only for not reporting it. We find that the evidence of record supports the Carrier's n . Y