Case No: 18
h
NMB No. 16
PUBLIC LAW BOARD NO. 4767
AWARD NO. 18
C'SX TR. ESPORTATION TVC.
vs.
BROT' H00 F O ONTO-7-v-F' '-'N -TL',7FRS
ST AT'VfFNT OF CLATtyi: Request was made to remove letter of
disc:pime assessing thirty (30) days suspension
also removing the copy of transcript of
investigation from personal record of engineer
R. 'E. ?_'ters, for alleged violation of Operating
Rums --'6, 561, 650, Train Handling rules 1.1.3
and 1.3.1.
Rzqu°_st was made for payment of the thirty
days suspension by letter dated March 6, 1991.
Ta_TFTNT OF FACTS: On December 1=, 1990, R E. Akers
(hereinafter claimant) a demoted =ngineer, was working as a qualified
helper on Relief Job HR02 (Loccrnotve Servicing Facility) at The carrier's
Moncrief Yard, which is located : Jacksonville, Florida. During such
assimnnent (aporo:cimately 1700 :ours) claimant and Hostler J. K. 2,VIaddox,
PLB 4767 ( . i
Award No. 18 -'
Page No. 2
an experienced switchman/conductor, were moving a two engine consist
throush a wve when a derailment occurred. At the time of such derailment
claimant was not operating the locomotive but was situated on the ground
and charged with protection of the movement. As a result of such
derailment both employees (Alcersr'viaddox) were noticed to appear for an
investigation to determine each employee's responsibility, if any, in
connection with such incident.
Following the investigation Division Manager W. J. Turner, Jr.,
reviewed the evidence and issued his decision, stating in pertinent part as
follows:
"This has reference to formal investigation held in the conference room at
Moncaef Yard, Jacksonville, Florida, on January 31, 1991, in connection with an
incident that occurred at approximately 1705 hrs, December 2, 1990, while you
were working as Hostler on assignment HR02, which resulted in a derailment to
an engine in the Locomotive Service Facility of Jacksonville, Fl.
Testimony presented in the transcript of the formal investigation reveals
that you failed to comply with CSX Transportation Operating Rules 46, 561, 650,
CSX Train Handling Rules 1.1.2, and 1.2.1. It was clearly proven in the transcript
that the locomotives you were responsible for were traveling more-than twice the
maximum authorized speed prior to the incident It was also proven that you
failed to perform a proper braise test prior to moving the locomotives; and you
failed to insure that the brakes were in operative condition prior to taking charge
of the locomotives.
PLB 4767
Award No. 18 '
Page No. 3
For your proven violation of CSX Transportation Operating and Train
Handling Rules, you are assessed discipline of thirty (30) days' actual suspension
without pay."
Such decision was unsuccessfully challenged on both procedural and
substantive grounds, and thereafter, properly processed to this Board for
final resolution.
FTNDTN
7S:
Under the whole record and ail the evidence, after hearing, the
Board finds that the parties herein are carrier and employee within the
meaning of the Railway Labor Act, as amended, and this Board is duly
constituted by agreement and has jurisdiction of the parties and subject
matter.
We find the carrier's disciplinary decision to be insupportable. The
carrier's notice of investigation contains no date of the alleged violation
(material procedural error) and the substantive evidence conclusively proves
that it was Hostler Maddox which had primary control of the movement and
therefore must bear the primary responsibility. _
PLB 4767 ~:.~,;
Award No. 18
Page No. 4
AWARD: Claim sustained. Carrier is directed to implement this award
within 30 days of the effective date hereof.
DON B. I-TAYS, Neu :ember
~ i
A. B. MONTGOMERY, E. L. HAYDEN, Oraani
'!I4em\
DATE