Upon the whole record and ail 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 Garcia ran or operated a TKO (tie knockout) machine, self-powered by a diesel engine of approximately 60 HP. Claimant Dixon operated a much smaller machine, a track slower, self-powered by a 20 HP Briggs 8 Stratton engine similar to that used in a riding lawn mower- The TKO is much faster, larger and more powerful than the track slewar.
Dixon's machine, being much slower, was apparently hindering the movement of the equipment to the hole. The TKO then commenced pushing the track slower. It derailed at a crossing plank, throwing Claimant Dixon to the ground who did sustain an injury.
As Is the custom, several track Supervisors were sent to the scene to determine the cause.
The three Supervisors testified at the Investigation and it was their collective belief that each Claimant violated a number of Rules. This resulted In each Claimant being assessed a 30-day record suspension with a three year probationary period.
It is not a violation to push or tow machine units, but each machine must have a tow bar attached. Apparently, the tow bars are attached only when there is need for towing or pushing.
Claimant Garcia testified he attached the tow bar to his machine and Claimant Dixon was to do the same. The purpose of the attachment of the tour bar was to enable the TKO to push the track slower (a much slower machine) along quicker so that they could be shuttled safety to the siding.
when the Track Supervisors were investigating the incident, each Claimant was to write a short note advising what occurred.
Claimant Dixon was not at the investigation although the Carrier followed the Rule In attempting to notify him of the Investigation. Claimant Dixon wrote in his note that "Foreman said turn machine." The Board Is not sure of what Claimant Dixon meant by the aforequoted, but Claimant Garcia testified the Foreman Instructed him to push the track slower to the skiing, as it is a much slower machine.
same. Whether or not there was a tow bar attached to the track alewer was never established. The track slewer has a turntable and to move the machine over the track the turntable had to be in the up position to clear. Testimony was that the turntable was not up as it should have been. it snagged on the crossing plank throwing Claimant to the ground. This was determined by the Carrier witness from the marks found on the crossing plank and the turntable itself.
It is noted that the Foreman was not called to the Investigation, and as stated, Claimant Dixon elected not to be there. Without their testimony, the Board assumes that the Foreman Instructed the Claimants to have the TKO push the track slower. It is also assumed as fact as there is no testimony to counter the evidence that the turntable was not being raised sufficiently.
Although the Foreman may have instructed Claimant Garcia to push Claimant Dixon's machine to reach the siting quicker, but It is also fact no Supervisor has the right to order any of the employees to violate any of the Rules.
The fact that Claimant Garcia carries a tow bar that can be used to tow or to push other equipment convinces this Board that the TKO does tow or push as found necessary. Claimant Garcia also testified that his speed while pushing was only three to five miles per hour, but the Carrier witness testified that the slower would have stopped movement when it hit the crossing plank if it was not being pushed as It would not be powerful enough on its own to override the plank.
Regarding the discipline assessed, Claimant Garcia was hired on May 4, 1998, and Claimant Dixon on March 12, 1984. Claimant Dixon's record contains a Rule 1.5 violation
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