Case No. 487 - Award No. 487 - Perot Carrier File No. 14-15-0308 Organization File No. 70-SF131'1-1583
Claim of the System Committee of the Brotherhood that:
The Carrier violated the Agreement commencing June 16, 2015 when Claimant, John M. Perot (1620384), was dismissed for occupying main track without proper authority at E. t\oel, Milepost 325.7 on the Panhandle Subdivision on May 24, 2015 while working as a Track Supervisor. The Carrier alleged violation of Maintenance of Way Operating Rule (:vIWOR) 6.3 Track Occupancy.
As a consequence of the violation referred to in part 1 the Carrier shall remove from Claimant's record this dismissal and he be reinstated with seniority, vacation, all rights unimpaired and pay for all wage loss, commencing June 16, 2015, continuing forward and/or otherwise made whole.
FINDINGS:
Public Law Board No. 5850, upon the whole record and all the evidence, finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended; that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing and did participate therein .
Claimant, John M. Perot, had been employed by the Carrier since 2004. On May 27, 2015, the Carrier notified Claimant to attend an investigation to ascertain the facts and determine his responsibility, if any, in connection with his alleged occupancy of main track without proper authority, at East Noel, MP 325.7 on the Panhandle Subdivisi on, at approximately 1500 hours on May 24, 2015 while working as Track Supervisor.
Following the investigation, the Carrier found Claimant guilty of the misconduct alleged, in violation Maintenance of Way Operating Rule (MOWOR) 6.3 Track Occupancy, and dismissed him from service.
The facts of this case are not in dispute. Roadmaster John Thomas testified at the investigation that at the time of the incident Claimant called to tell him he had exceeded his limits. He stated that Claimant relayed that he was hy-railing to East Noel from Avard and had the appropriate track authority, which he had obtained via the Smart Mobile Client. Claimant told Mr. Thomas he requested another authority, but his computer screen went blank, so, when it came back up, he assumed the authority was for that request. However, it was for the same territory he had already occupied, so when he went forward the exceeds alarm on his Hi-Rail Compliance System (HLCS) verified that he was out of his limits. Claimant, he stated, exceeded his limits by about 1500 feet, at East Noel, Milepost 325.7.
Mr. Thomas acknowledged that the area in which Claimant was working frequently experienced communication problems with the Smart Mobile Client. He added that an employee may receive authority by communicating directly with the dispatcher.
Claimant explained at the investigation that he received two authorities for the same limits, which he did not realize until the red "exceeds" light showed on his HLCS. Claimant also stated that it is common for employees who work in this area to lose the signal on the Smart Mobile client. He added that employees in other areas use a different wireless carrier and do not have problems, and this issue had been brought to management's attention but nothing had been done.
Claimant testified that he had to request authority from Alva to East Noel twice because the computer went "brown," but he did receive that authority. He then requested authority from East Noel to West Noel and an authority came back, with a different number than the one Claimant had previously received from Alva to East Noel. However, this was in fact a duplicate authority from Alva to East Noel; Claimant had received the same authority, although with different authority numbers, twice. Claimant acknowledged that he had requested that authority twice, because of the computer brownout. He testified that he had never before received two authorities, with different numbers, for the same track.
Claimant assumed the new authority was for East Noel to West Noel, so he proceeded into that area, triggering the out of limits alarm. He stated that he did not open the second PDF file.
Claimant's personal record shows a Level S record suspension, with a three-year review period, issued on May 6, 2015 for improper use of an electronic device, a formal reprimand issued on March 2, 2015 for failure to get permission from the control operator to operate a dual control switch by hand , a Level S record suspension, with a three-year
review period, issued on September 26, 2012 for failure to properly lock out equipment, and an earlier operating violation.
The Carrier notes that the applicable Rule provides that for a maintenance of way employee to occupy track, he must first receive proper authority from the dispatcher. The requirement, the Carrier stresses. is in place to ensure employees are protected while occupying track, that is, there is no danger of a train approaching. The Carrier explains that an employee can receive authority electronically, by using a Smart Mobile Client, or by radio. If an employee exceeds his limits the HLCS unit will record that information and issue an alarm to the employee.
The Carrier asserts that Cla imant admitted that he occupied the main track without proper authority at East 1\oel, Milepost 325.7, and that the HLCS alerted him to that fact. I fis explanation, that he assumed he had authority between East :\'oel and West 1\oel because he received a PDF with a different number than was on his earlier authorities, does not excuse him, the Carrier states. Claimant did not verify that he had the proper authority before proceeding; he just assumed it. Indeed, the Carrier stresses, Claimant admitted that he did not even open the file. It is well established, the Carrier notes, that admissions such as these are sufficient to satisfy the Carrier' s burden of proof.
As for the penalty, the Carrier notes that Claimant had a Level S violation, with a three-year review period, on September 26, 2012, and another Level S, with another three-year review period, on May 6, 2015. According to the Carrier's Policy for Performance Accountability (PEPA), the Carrier states, Claimant was subject to dismissal for the second Level S offense within three years, but the Carrier showed len iency. This is, the Carrier adds, Claimant' s third Level S offense within three years, and all involved safety violations. The decision to dismiss Claimant was not arbitrary or caprici ous, the Carrier concludes.
The Organization raises procedural and substantive challenges to the discipline assessed against Claimant. In particular, the Organization argues, this case is really about a breakdown in technology , not any misconduct by Claimant. As Claimant testified, the electronic system is subject to "brownouts" which cause an employee to lose contact with the Carrier's dispatch system. That happened here, the Organizati on explains when Claimant was attempting to obtain the authority a t issue. When the system came back up, it sent him an authority with a number different than the one he had for his then-current location. However, it was in fact for that same location, and not the additional author ity he requested. The Organization notes Clai mant' s testimony that this had never happened before, which it was unable to corroborate because the Carrier did not produce the additional witnesses it requested.
This incid ent, the Organization argues, was not Claim ant' s fault. Even if it were, the penalty of dismissal is arbitrary, exc essive and unwarranted.
We ha ve carefully reviewed the record in its entirety. First, we find no procedural error which deprived Claimant of his right to a fair and im partial investigation , especially
21