NATIONAL N i:DIAT1ON BOARD PUBLIC LAW BOARD NO 5905 AWARD NO 50, (('ase No 50)

BROT EAU )1) OF MAINTENANCE OF WAY EMPL YES INISION IBT RAIL CONFERENCE

GA RAILWAY COMPANY

n R. Miller, Chairman and Neutral Mem c Ryan Hidalgo, Lmployec Member Sean M. Dalton, Carrier Member

Hearing Date: January 8, 2014

STATEMENT OF CLAM: "Claim of the System Committee of the Brotherhood that:

The Carrier's dismissal of Mr. NI. Sowonik for his alleged violation of Maintenance of Way Rules 1.10, 1.15, 1.27, 1.46, 1.53, 4.2, 9.1, 9.2, 10.4 and 10.20 (22.5, Parts 1&7-Track Foreman only) when he allegedly provided false written and/or verbal statements to Carrier official(s) regarding an incident that occurred on July 17, 2012 is arbitrary, capricious, excessive, unwarranted and in violation of the Agreement (System File CW-12-12/142-243).

As a consequence of the violation referred to in Part 1 above, Claimant Sowonik shall now be allowed the remedy prescribed in Rule 57(c)."

FINDINGS:
Public Law Board No. 5905, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing thereon and did participate therein.
The undisputed facts indicate that on July 17, 2012, Claimant was working as a Foreman on a Maintenance of Way track crew that was replacing worn rail and ties on Track 2-L in U.S. Steel, Gary Work Plant. At approximately 9:30 a.m., M of W Supervisor Groebner arrived at the work site to deliver some supplies when he observed crew member Mr. McEwen walking towards him with another member of the crew, the Claimant, who was bleeding and had been injured. Supervisor Groebner immediately transported the Claimant to the U.S. Steel medical dispensary where he received initial treatment for an injury to his chest, after which he was transported by ambulance to a nearby hospital.

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On the same date of the incident the Carrier instigated a field investigation to determine the cause of the incident. Based upon discussions with and written statements given by the various crew members, it was determined that Claimant was swinging a sledge hammer in an effort to remove bolts and a pair of joint bars from the rail of the track, when a small piece of metal struck him and became embedded in the upper left side of his chest. The crew members reported that none of them had seen exactly how Claimant was injured.

The initial inspection of the sledge hammer found it to he in good working condition with no defects found on the striking surface. An inspection of the surface of the splice bar that Claimant allegedly struck with the sledge hammer when working was found to have no defects as‘vell, where fragments could have broken off and struck the Claimant..

The parties arc in agreement that if the tas.k done by Claimant on July 17th was attempted by one person, the proper tool to be used would have been a sledgehammer whereas if two employees did the task a track punch would he used in conjunction with a sledgehammer, one person holding the track punch and the other using a sledgehammer to strike the track punch that was placed against the bolts and/or joint bars. The track punch is a tool that has a handle the approximate length of a sledgehammer with a large head for being struck by a sledgehammer that narrows down to a smaller point for breaking loose rusted objects, etc.

Subsequently, another inspection of the job site was done an a track punch was found to have a metal chip missing. The Carrier reasoned that Claimant might have used a track punch which was an improper tool for the work he was doing when he was injured. The Carrier sent the track punch to an independent metallurgical engineering firm, ITC Experts on July 27, 2012, and was tasked with determining whether the dimensions of the void on the track punch were consistent with the hospital's written reported dimensions of the metal fragment removed from the Claimant's chest.

On July 20th the Carrier conducted second interviews with the crew members and asked each how the incident occurred, where each individual crew member was physically located and whether or not a track punch was used in the removal of the bolts and joint bar. All of the crew members identified the locations of the various crew members at the time of the incident and all stated they had not used the track punch and had no knowledge of the track punch being used by the Claimant.

Because the Carrier believed there were some alleged discrepancies between the physical evidence and the crew members statements the Carrier brought charges against all of the crew members including the Claimant.

On August 31, 2012, Carrier notified Claimant and fellow crew members to appear for a formal Investigation on September 6, 2012, concerning in pertinent part the following charge:

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"This investigation is beint convenedto develop all facts and   nine your

responsibility, if any, in connection with the charge that you allegedly violated Maintenance of Way Rules 1.10, 1.15, 1.27, 1.46, 1.63, 4.2, 9.1, 9.2, 10.4, 10.20, (22.6, Parts 1 & 7 - Track Foreman only) when you provided false written and/ or verbal statements to carrier official(s) regarding an incident on July 17, 2012."

On September 14, 2012, Claimant was notified that he had been found guilty as charged d was dismissed from service.

It is the position of the Organization that the Claimant's Investigation was not "fair and impartial." because the Hearing was not called within 30 days of the incident under charge which was not in accordance with .Rule 57(a). Based upon that alleged procedural error the Organization asked that the discipline be set aside without reviewing the merits of the case. However, if the Board chose to review the case it asserted that the Board would discover that the Carrier did not meet its burden of proof It argued that the transcript reveals that after the gang arrived at Track L-2 to perform work, the Claimant retrieved a sledgehammer to perform the work of removing a pair of joint bars from the rails of the track. While performing that task, Claimant injured himself when a metal fragment apparently shot up from the area where the sledgehammer had made contact with the joint bars and struck him in the chest while he attempted to remove the joint bars from the rail on the track. A short while later, the crew members heard a commotion and Mr. McEwen was the first crew member to offer the Claimant assistance after which he escorted Claimant to meet with Track Supervisor Groebner to inform their superior of what had just occurred. According to the Organization, the Claimant performed all of his duties in a safe manner and he told the Carrier everything he knew about the incident and there is nothing in the record to indicate that he was not truthful about the incident which was an unavoidable accident. Lastly, and without prejudice to the Organization's position that even if the Carrier provided sufficient evidence in support of the charges against the Claimant (which it did not do) the discipline is excessive as the Claimant had a discipline free work record prior to the time given rise to this dispute. It concluded by requesting that the termination of the Claimant is rescinded and the claim sustained as presented.
It is the position of the Carrier that it properly terminated the Claimant from its service and the discipline was appropriate for a serious offense. It first argued the Hearing was held in a "fair and impartial" manner and the Investigation was held in a timely manner. It asserted that it did not have first knowledge that an offense may have been committed until it obtained a final report from ITC on August 29th confirming that the metal fragment removed from the Claimant's chest was the same fragment from the void in the track punch, thus, according to it, the calling for the Investigation on August 31, 2012, was in conformity with Rule 57(a). The Carrier requested that the case be resolved on its merits because there were no procedural errors.

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`twang to the merits the Carrier     on the day of the incident and it was the protective rubber collar on it. It a

-ecord shows that a track punch was d or used properly, because it did not have he metal fragment that was lodged in the

Claimant's chest came from that tool which was verified by a scientific examination. It further argued that Claimant and the other charged employees chose to withhold information frorn Carrier Officers and gave false written and/or verbal statements regarding how the incident of July17, 2012, actually happened. Additionally, the CAuTier stated that subsequent to the formal Investigation, one of the charged employees, Mr. MeEwen contacted Supervisor Ortegon on September 7th and claimed that during a recess in the course of the formal Investigation, Mr. J. Guzman admitted to the other charged employees that he held the track punch on July 17th indicating Claimant was the one who struck the track punch. The Carrier argued that despite that conversation having allegedly taken place prior to all the charged employee's testimony, each of the employees including Claimant, testified to having no knowledge of the use of the track punch. Furthermore, the Carrier stated that the Claimant also contacted Supervisor Ortegon on September 7, 2012, wherein he told Ortegon that Mr. Guzman confessed to him in the parking lot immediately tbllowing the Investigation as to having held the track punch while maintaining that he had no prior knowledge or recollection that the punch had been. used. It reasoned that the Claimant as the leader of the gang failed to show proper leadership when he and the other charged employees engaged in a concerted effort to cover up the true cause of the incident and lied to multiple Managers about the accident. It closed by asking that the discipline not be disturbed and the claim remain denied.

The Board notes that this is a companion case to Award Nos. 47, 48, 49 and 51 of this tribunal, all of which dealt with an alleged incident that occurred on July 17, 2012.

The Board will first address the Organization's procedural argument that the Investigation was not "fair and impartial" because the Hearing was not called within 30 days of the incident under charge and that was an alleged violation of Rule 57(a). Rule 57(a) states in pertinent part:

"...No charge shall be made more than thirty (30) days after the date a carrier officer has knowledge of the offense...." (Underlining Board's emphasis)

The aforementioned Rule is clear that the determining factor for an Investigation being called in a timely manner is dependent upon the Carrier's first knowledge of an alleged offense and not when the offense may have occurred. The question at issue then becomes when did the Carrier have first knowledge that an offense may have been committed on July 17, 2012. The Carrier argued that it did not have knowledge that an offense may have been committed until it obtained a final report from ITC on August 29th wherein it was shown that the metal fragment removed from the Claimant's chest matched the void in the track punch. The Board is not persuaded by the Carrier's argument that it did not have first knowledge of the incident under

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charge until. August 29, 2012, ") when it. received a Final report r   ITC, but instep d it is
determined that the Carrier had reasonable first knowledge when it received 1TC's initial report on August 2nd to issue its charge letter. Using the August 2 date as Carrier's first knowledge of the alleged incident the issuance of the Notice of Investigation on August 31st was on the 29th day and was in accordance with Rule 57(a). The dispute will be resolved on its merits.
if t mation of the entire record substantiated that on July 17, 2012, the Claimant was injured while working. In the Claimant's written statements of July 17 and 20, 2012, he maintained that he did not use the punch and had no knowledge of the punch being used at the time of the incident. On page 56 of the transcript the Claimant was questioned about the incident as follows:

"Hearing Officer. And was (sic) did that job task entail?

M. Sowonik: We had to replace, replace the old wooden ties with new steel ties, and we replace two approximately ten foot rails each.

hearing Officer: At the time of the incident, do you recall where you were located?

M. Sowonik: On the inside of the track. Hearing Officer: At the joint bar?

M. Sowonik: Yes.

Hearing Officer: Who else was located there?

M. Sowonik: I couldn't tell you. As in the other statement, I took the sledgehammer fro Nate McEwen, or he gave me the sledgehammer from Nate McEwen, and I picked up a smaller one that was laying next to me, and I just looked behind me to make sure nobody was standing back there because there was a welder cutting bolts just to make sure he wasn't sitting right behind me when I swing the hammer, and I didn't see anybody standing behind me so I swung the hammer and the next thing I know I felt a pinch in my chest.

Hearing Officer: Do you recall seeing the track punch laying in the area? M. Sowonik: No, I don't recall seeing it.

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Hearing Officer: Do you -ecall seeing anyone use the punch?

NI. Sowonik: No, I do not recall seeing anybody use the puch. (Underlining Board's emphasis)

Claimant was consistent with his two written statements and testimony as he categorically denied that he had used the track punch and further denied any knowledge of any other employee using the track punch.
Contrary to the Claimant's and the rest of the crew's rendition of the event the evidence shows that the Claimant used a sledgehammer while Mr. Guzman held a track punch that was used without a protective rubber collar on it or an ill fitting collar which allowed the metal fragment to break off of the track punch and strike the Claimant in the chest. The Carrier's Safety Rules require the use of a rubber collar on a punch and other striking tools in a effort to minimize potential injuries. When the track punch was examined after the Claimant's accident the tool was found to have a rubber collar on it, but the collar was from a smaller tool and it did not properly fit the track punch. Additionally, the track punch was not near the immediate vicinity of the incident in what appeared to have been an effort to "stage" a scene that suggested the track punch was not used by the Claimant and Mr. Guzman and that the Claimant had been working alone.
The record stands un-refuted that the Carrier paid for an independent metallurgical engineering firm, ITC Experts to examine the track punch that was on site of the accident as to whether the dimensions of the void on the track punch were consistent with the metal fragment removed from the Claimant's chest. ITC's initial report confiimed that the size of the fragment removed from Claimant as reported by the hospital was the same size of the void in the track punch. After that report the Carrier asked Claimant for written authorization to obtain the fragment from the hospital, which he agreed to. After obtaining the fragment ITC examined it and issued a second report confirming that the metal fragment had preening marks similar to those on the hammer face, and that the shape and size of the fragment matched that of the void in the track punch. The evidence was conclusive that the metal fragment that struck the Claimant's chest came from the track punch that was on the job site.
During the on-property handling of the claim and in the Carrier's final declination of May 6, 2013, it wrote in pertinent part:

"On September 7, 2012, the day following the Investigation, M of W Supervisor, B. Ortegon received a phone call from Claimant McEwen in which he stated that during one

of the recesses taken at the Investigation,   that Claimant Guzman admitted that he was the one holding the track punch .... Despite this, however, during the remainder of the Investigation that day, all of the charged employees continued to deny any knowledge of

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the use of the track winch. Later that same day, September 7, 2012, Supervisor Ortegon also received a phone call from Claimant Sowonik in which he claimed that after the Investigation concluded, Claimant Guzman admitted to him in the parking lot that he had been holding the track punch. on July 17. Based on the information gathered prior to the ^-Investigation on September 6, the Carrier does not believe, as the claims of Claimant McEwen and Sowonik seem to suggest, that the charged employees did not know that the track punch had been used, or by whom it had been used, prior to September 6, 2012." ((Inderlining Board's emphasis)

The Carrier's aforementioned statement was not refuted.   Arbitral precedent has

continually determined that un-refuted statements arc to be considered factually correct and those industrial precedential decisions will be followed in this instance as well.

It is clear that Mr. Guzman told his fellow crew members during a recess of the formal Investigation on September 6, 2012, that he was holding the track punch when the Claimant struck it with a sledgehammer and was injured. Claimant consistently asserted that he had no recollection of anyone holding the track punch that he hit with the sledgehammer. That statement is difficult to believe as there was no showing that his injury impaired his memory, but assuming for the sake of argument he did not remember that event, it is clear that when he testified at the Hearing he had chosen to collectively join with his fellow crew members in a fabrication of the incident via omission, with the hope that Mr. Guzman would testify that at the time of the accident he was holding the track punch when the Claimant struck it with a sledgehammer. As sometimes happens when individuals conspire to withhold information or not to tell the truth it is not unusual when someone within that group becomes remorseful or decides that it is not in their best interest to not tell all they know, which is what happened regarding Claimant's accident. It is also apparent that the Claimant did not converse with his co-worker Mr. McEwen prior to the Claimant's telephone conversation with Supervisor Ortegon as the Claimant did not acknowledge that Mr. Guzman told all of the charged employees, at one of the recesses of the Hearing that he held the track punch for the Claimant. Instead the Claimant stated that Mr. Guzman made his admission of involvement to him alone in the parking lot after the Investigation. In view of the fact that Mr. Guzman told all of his fellow Claimants that he held the track punch for the Claimant during a break in the Investigation, the Board would have to assume that the private conversation between the Claimant and Mr. Guzman was a reiteration of what Mr. Guzman had already told the Claimant and the other involved employees and the Claimant chose to only advise the Carrier of the latter conversation with Mr. Guzman. Therefore, it is determined that Claimant knew before he testified that he was not working alone and when he struck the track punch that Mr. Guzman was holding was when he was injured and despite that knowledge he independently chose not to be forthright in his explanation of everything he knew about the incident. Substantial evidence was adduced at the formal Investigation that the Claimant was guilty as charged.

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The only issue remaining is whether the discipline was appropriate. At the time of the incident the Claimant was a relatively short term employee with approximately three years of service. Claimant's offense was of a serious nature as he chose not to be candid about the events of July 17, 2012, and in the process he breached the mutual trust relationship between the Carrier and himself The Carrier's assessment of dismissal was in accordance with its Disciplinary Policy and because it was not arbitrary, excessive or capricious it will not be set aside. The claim will remain denied.

AWARD

Claim denied.