Upon the whole record and all the evidence, the Board finds that the parties herein are carrier and employee within the meaning of the Railway Labor Act, as amended Further, the Board is duly constituted by Agreement, has jurisdiction of the Parties and of the subject matter, and the Parties to this dispute were given due notice of the hearing thereon
Claimant, on \ovcmber 14, was the operator of a spike driving machine, hereinafter referred to as a spiker While operating this machine, an accident occurred, injuring two employees, one fatally
The Canicr, on November 22, charged that Claimant allegedly violated various rules, and set an Investigation to determine the facts. As a result of its findings at the Investigation, Carrier dismissed Claimant from its service
Claimant. on the day of the incident, disconnected the quality control can from his spiker and moved ahead about 150 feet. Both units, the quality- control cart (which had propelling power of its
' pL cg ,R~ . 585own) and tire Spiker, were being used as quality control for the main operation They checked for bent or missing spikes, missed rail anchors, missing or crooked tie plates, etc.
Claimant went past a bent spike plus an area with no spikes. He stated he blew tile horn that was on the spiker three times which is a signal indicating intent to reverse, saw one of the two employees on the quality cart move his hand, accepted that gesture as an OK to reverse, and did so, with tragic results When the two machines hit, all three employees were looking down at the track bed, intent upon doing their work.
The surviving quality cart operator testified that he had worked well with Claimant in the past, and that when Claimant intended to reverse the Spiker tie would blow tile horn and lie would step outside the machine seeking assurance that the reverse movement was acknowledged In this instance, however, if Claimant did blow the horn signaling intent to reverse, tile quality control operator did not hear it, nor did a quality control operator signal Claimant, acknowledging Claimant's intent to reverse (lie Spiker
There has been a thorough discussion of the warning devises on the Spiker machine, one concerning the horn. the other. the beeping signal automatically activated when the unit is placed in reverse The horn, according to testimony adduced at the Investigation, is clearly audible to the quality control cart operators when the units are about 50 feet apart, even with the diesel engines on the units running. and even while the operators are wearing ear muffs or plugs to protect their ear drums. I lowever, it was estimated the Spiker was between 100 and 150 feet from the cart, and at that distance the horn blast is less audible
audible when the diesel engines on the units are running and the operators are wearing plugs or ear muffs It was also established that the quality control cart had no radio.
As sympathetic as this board is to the plight of the Claimant, the facts are undeniable. Claimant started the fatal reverse movement without following established procedures. If he blew the horn, as he alleged, no one on the quality cart acknowledged it. He just assumed the trailing unit heard the ltorti blasts. Claimant, atler the horn blasts, again assumed the hand gesture lie alleged to have seen coming from one of the quality control cart operators, was an acknowledgment of his intent to reverse The surviving quality control cart operator said he gave no such acknowledgment and was not aware of the reverse movement It is inconceivable to this Board that the deceased quality control cart operator would have signaled acknowledgment without communicating with his cooperator.
Although the speed of the spiker in the reverse movement was not an issue, it was developed that the quality control cart was shoved some 45 feet from point of impact
The Organization challenges Carrier's finding of culpability in this case, arguing that the discipline was too harsh and an abuse of Carrier's authority. In the on-property handling, they had listed some 77 other incidents of collisions between machines, equipment and/or employees wherein the discipline process was instituted with findings from exoneration to dismissals, with reinstatements on a leniency basis to bolster their argument, but none involved consequences as tragic as found here
The Organization also argues that this accident possibly would not have occurred had anyone in the supervisory ranks been working with the following unit in lieu of all working ahead with the majority of the gang; that had the quality cart operators a radio to contact the spiker; had the back-up
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The answers to these challenges can only be speculative How having a supervisor pi esern could have prevented the accident is an unknown Radio contact would perhaps have been a more foolproof method of communicating, but then would the radios be effective. They had tried a pair of voice activated radios, one on the cart and one on the spiker, but they were ineffective Perhaps an enhanced beeper signal when the spiker is in a reverse movement may have provided adequate warning, and perhaps not. The revised rule was made known to Claimant in a safety meeting held sometime prior to the accident. and each unit, also prior to the accident, had a label applied warning of the space requirements when moving or working the machines, so that of and by itself the rule revision is not a major factor in this dispute
Claimant stated. and this has been armed by the quality control car operator, that they had been working together since March 6, when the gang started, without incident, and that adequate communications through job briefings. horn and hand signals had sufficed When all parties are alert and in harmony, looking out for themselves and others, job briefings, horn and hand signals will suffice as is evident by the fact that they had worked together without incident for about eight month, But in one instance, in this situation, Claimant proceeded on assumptions rather than assurances with tragic consequences
The Carrier has satisfied the substantial evidence required to find Claimant culpable of the charges Under these circumstances, this Board finds there is no mitigating circumstance that calls for a lessening of the discipline.
1066 ,~ . 6- 8856