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into evidence at tile investigation .At the intcstiazrtWn, %1r. Al-,new stated that tile now parts had been installed and tile darnagcd pact; tkerc no lwrgcr tilailahlc tot- inspection. lie explained that tyre ;guide rods irnti clipper assembly ()it the ',,(:It ~,rdc \cork ltcacl hall heett replaced. I'lte clillmr asscnrhh_ lie stated, is :r small \kirc :it tile hcstt«rn of the %work head,

".1r. Ahrtc, tcstihcd that rucchanic 13uddG INchrnhathcr tested and rcpaircd the machine slit?rtly after the incident. ,1 hancllyritten ~taterrwnt ho, Mr. I sclrcrrhaclor wca,, nuerc f into evidence at the investigation. It recited. cwttlr respect to tile machine It

_`l lead No. I "As darnasued when it hit a crussinv dmnaL_,,c wa,: nrirwr fixccf in in lrt rain. kwith a Cutnal0ni-I &- Chain." \It- Ahncy expfaincd that it is normal Nrr Maintenance ref Way emplOcues to make temporary rcp,rirs t« a pic:cc of' equipment in twofer tot have it functional to complete that (lay-y %torh. until pcmt<mcm rcp,rirs can he naatle. anti Owl was \what Mr. l:schcnharher aecttntplished. Ile micfed that permanent rcpairy t\cre rcefuir-rd after the Ga. W Abney further stated that ec-en if the icork herd was dantal-,ed it) the point that it had to be repaired, the rnacldne cotrlcf he E~torkccf. r% crt if tile trrritfe heads ~~ere bent anti the: machine was curt If)t?"o productive,

Claimant testified alt the investigation that at tile tittle «f the incident she had opvratcd the machine at issue for about three months. Wmant stated that she had found ntr exe0tions to the machine during her morning inspection. but during tile days second Q. cite inrk heads on her macdtito "kept bleeding do\kn." `she? stated that who inforrtted ltcr torcman of the situadon by rmhv and he: bt.sistcd that dw hurt- as thaw, %were pusltin~ l:;r time. '-',lie stated that sheyaskcd Nrr a nteehanic anti the forcrtt:zn rclu'sed because he teas hcr;hirts_) l'or lintc. Claimant rnaintainecf that site considered the machine unsale tot run but the t«renian refused to call a mechanic and tltreatencd to charge her kith insuhc~rdinatitrn if she refused to run the machine. Claimant ~tatccf that ;he wvct, unav~arc that she could have "empowered herself" and taken tile machine out t)f sere ice.

Claimant testified that at tile location tyfwre she %i;r:s %yorking there w<rs one hoard of ct road crossing and. prior to hacking trp, she saw the hoard in file road crossin». Site maintained that Thor to ping across the true board anti then a road crossing. Shin locked up and pinned up her work heads. 'she stated that prior- to going, across tile erossin g she ctmfinncd that they \york heads «-ere locked up by checking Owl the fade red pins arc in the holra. «hich show that tire "«rk heads are locked. She acknoNvIccfucd that she tritrst \ isuallv inspect the puts. `she Air acknowledged that site must actually~activ ate tile t<ork asscmhly to confirm that it is locked. arid she did so.

She stated that the %work head came into contact with the one crossing hoard hccausc all that morning the left side kept bleeding clown. Slw maintained that tile work head could "hlc=ed chow-n" even if it had been properly pinned tip- if there hats hccn t iterations frcmt the: ntov-enwnt- Ifowevcr, she ids) rrtaintairod that tile stork head wets not hit cart tire road crcksing. rather just a small piece of lcirv at the hwttsrn of Ow rtmchine.

Claimant also maintained that fi~llt>~irr tile incident ;dl z>f the rttaehirre s functions xNere %%c}rking prupcrly Nor the wrrrairrcler of lwr nhif`t and ;Ice contpUecf

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~approxim<ttc~l~, three hours of'

pork bef'orc any repairs «cre perf'( ,rtt;ccf. `~hc ;rl~<, maintained that the .;crew assembl, still fit propcrl~ but \~;ts "~tta a hair" t>ff: and that it lead been screwins- straight prior 1o the incident. `she also maintained that E,cN-and \fr. I .scherbacher's repairs none were made stn the machine when site ,~orkcd it fiont the I 51'' though tile 1 8`t'. She stated that it' the guide rods had bet hint it would not ba%v beat possible to continue l\orking can tile machine.

Claimant's personal record sho\\s no prior discipline.

F he Carrier asserts that this case is not complicated: I lie Organization's position that there was no damaL=c to tilt= machine at issue is based upon Mechanic Eschenhachcr's statement. but disregards Supervisor of'hailway lquipment RufitS :\bnev*s statement that tile damaue was caused by Claimant's failure to have: tilt= component lucked up and the ,pork head in the locked position while traveling. The Carrier also notes Mr. Ahnc\`S testimony that there was approximately 53000 earth of* datuattc. LORich necessitated permanent repairs to tile guide rods. which a=cre completed. The Carrier points to tile simple I4tct that tile heads oil tile machine were not locked tip properly tOtilc the machine was traveling, arid it hit <t crossing. Claimant. the Carrier notes. adnrittcd that she had all accident with her machine and damaged it. Fhis admission alone. the C'arricr states. is sufficient to satisfy its burden of proof: With respect to tile degree of discipfine assessed, the Carrier asserts that the C)r·anization's argument amounts t« a request ii,r IC'ni~t3C. ffo\ve%er. the Carrier states, it is well established that the 4ut'antinig of' leniency i; solely within the discretion ol'the Carrier. I -lie Carrier ur~-es 117;11 the claim be denied.

Ilte Organization raises procedural and substantive challenges to the discipline assessed a,ainst Claimant. First. the Organization states. tile Notice of, Investigation was deficient as it lacked reference to any specific rules allegedly \. itdatcd by CILurnant. and the defect was compounded by the Carriers placing those rules into etidence at tile investigation. I hesc actions. the Organization states, put Claimant and her represcntatiVc at a distinct disad\rantage in preparing a proper defense. Further. the C)rfoanization notes. tile l learing C)l'licer pre% cnted Claimant f'rorn participating in her defense by interrupting her questioning of a Carrier witness.

On the merits. the Organization states that tile Carrier has failed to meet its burden of' proving Claimant's guilt b'V substantial evidence. There ~vtrs no evidence. the Orsu,aniration points out, that any permanent repairs were made to tile nachine Claimant supposedly damaged so badly it could net operate: all that \Gas presented was an cstitnatc for the cost of* replacement parts. (here were. the Organization points out. no photographs <,I' the. purported damage nor work orders showing any damage ivas ct=cr repaired. 'File Carrier's oxvn Mechanic. the Organization states. stated that repairs were accomplished ~\ith a "come-al<tn;_. and a chain and took only 10 ntinuI.eS. vlc.trccver. tile ClainianCs testimottv that she vas able to work her machine t<rr the rest of the. drtv at issue with no slo«dimn shows that tile Carrier's claim t_)f'sttbst,uttial damage it; clttbiOtts.

With respect to tile penalty assessed. the Organization rrr,tcs that CI<timant is :, tic-,,car ernplo~rc in tile infeancy of what could be a long and producti%c: career with tile

YI t3 4~B~tr C~isce '.N<,. -t Itr

Page -t cat la

t'arrier. ]lie t)rganization states that discipline is meant to he an ernploycr action to> correct an employee's unacceptable behavior or performance problems. A'l1en addressing behavior problems. the Orattizaticn asserts. dIiscIpiIne should he progressixe in nature. escalating the penalty for each subsequent occurrence. For employee performance, however, the Orgam/ation urges, the more appropriate method is to correct ,rn employee though non-disciplinary measures such as coaching and counselinh. training, accommodation and/or reassignment. Claimant. the OrganizatIion asserts, .should have been given the opportunity to improve rather than having been subjected to serious discipline. File Organization concludes that the discipline assessed ~ksas extreme. unwarranted and unjustified arid urges that the claim be sustained.

We hate carefully reviewed the record in its entirety. First. we find nip evidence of any procedural irregularity which deprived Claitrrant of her riulit to a fair zinc] impartial in)"estimtion. In particular, the Investigation Notice was quite specific as to~ the time and particulars of the asserted violation, and the Ciraniration has not pointed to> any requirement that the specific rules alleged to have been violated he cited in the lnvestittation Notice.

Oil the merits, the Organization's arse appears to rest upon its assertion that in fact there was no damage to Claimant"s machine. Mr. Abney ease detailed testimony it) the contrary describing the nature and extent of the darna e. . I'll'

is presents a questiurl <>f credibility and credibility is fOr the Hearin,-) Officer. We find the record sufficient to Conclude ~that there was damage t« the machine as described by !Mr. Abriev.

As to the particulars of the incident itself; Mr. Abney also explained in detail how
lie determined that the work heads had not been secured as rectuired by Carrier's rules.
Claimant ilave confusing Lind contradictory evidence in her defense, asserting both that
tier rrrachine was unsafe and that it had worked perfectly well with only minor adjustment
alter the incident. She also asserted that she had in tact secured tier machine properly,
that the work head was struck because it kept "bleeding dow-n," and that the work head
had in tact never struck the crossing plank and only a small -,xire. made contact. The
evidence presented by the Carrier, which, as the Hearing, Officer apparently found was
not credibly contradicted by the Claimant. is sufficient to meet its burden of proving her
guilt by substantial evidence. As for the penalty, it was assessed in accordance ~Jth the
Carriers f lTA and we cannot say that it represents an unfair. arbitrary car discriminatoru
exercise of the Carrier's discretion to determine the appropriate disciplinary sanction.

t't t3 ``'"~tt. Cz"e No. 4 Ifs pare · vf'6

AWARD

Claim denied.

SAMANTHA Kjio~CS
Carrier Member

Dated this ~~. ~i'' day of

,2012.

DAVID TANNER
Organiz,ttion Member

!'LB 5RS(1, Case No. 4 10