On July 18, 2011, Claimant was found guilty as charged and was assessed a Level 5 discipline and dismissed from the service of the Carrier.
This is a companion case to Award No. 183, Case No. 204. There is no significant difference in the two cases except for the fact that the Claimant in this case was a Foreman and the Claimant in the other case was a Machine Operator. Both employees were charged with most of the same Rules violation with some slight variations due to the fact that the Claimant was a Foreman. The same arguments made by the respective parties in the aforementioned case were made in the instant case and for the sake of brevity will not be repeated. As stated in the aforementioned Award substantial evidence was adduced at the Investigation that the errors made by the Claimant contributed to the accident and Claimant was guilty as charged.
Additionally, the Board will not reiterate the reasoning of Award No. 183, but has determined that it is equally applicable in this case and it shall be followed. At the time of the incident Claimant had 14 plus years of service with a good work record. It is evident that the Carrier believed the Claimant was a valuable employee when it twice offered a Leniency Reinstatement Agreement. That offer was rejected and is not considered binding, however, the Board believes that dismissal in this instance is excessive, therefore, the Board finds and holds that the Claimant will be reinstated to service with seniority intact and benefits unimpaired with no back pay. The Board also forewarns the Claimant that after reinstatement to service he needs to be careful to adhere to all Carrier Rules and Safety Rules. r
The incident under investigation involved a train with twenty-seven (2?) gondola cars and one (1) tracker machine hitting the underside of a bridge. While there is no mention of it in the Majority's opinion, the Organization's primary argument in connection with Foreman Seder was that the Carrier failed to provide a fair and impartial investigation because it did not provide the train crew as witnesses at the formal investigation. A request for the train crew as witnesses was made prior to the investigation (Employer' Exhibit "A-2", Case 205) with a clear offer of proof that the train crew was directly involved and thus necessary to establish all the facts during the investigation. When the Carrier failed to produce those witnesses at the investigation, the Organization objected (Tr.PP.15,16&1'7, Case 205). In connection with this objection, the hearing officer did not reject the Organization's challenge that the witnesses were directly involved and had pertinent information, but instead contended that it had no responsibility to call witnesses.
The hearing officer's ruling on the Organization's objection can be seen at Page 16 of the transcript (Case 205) and, in pertinent part, reads:
Well again, I'll refer you to that you will provide the witnesses at your expense and you will provide the witnesses at your cost and you will contact the witnesses that you need. The Company has no- has no responsibility to provide those witnesses."
Following the Carrier's decision of guilt, the Organization's July 26, 2011 claim letter (Employer' Exhibit "A-5", Case 205) and its November 15, 2011 claims conference letter (Employer' Exhibit "A-8", Case 205) again reiterated the Organization's position that the Carrier failed to provide Foreman Seder a fair and impartial investigation. In addition to the Organization's recitation of its position during the hearing and at every level of the claim handling, it was also a primary argument within its submission wherein it asserted that the Carrier is Labor Member's Dissent
responsible to present all witnesses with pertinent information and to develop all facts relevant to the incident(s) under investigation. The submission cited NRAB First Division Award 19910, Second Division Award 2923, Third Division Award 20014, 23097, 31547, 33609, Award 40 of PLB No. 4081, Award 586 of PLB No. 5383, Award 2 of PLB No. 5681 and Award 43 of PLB No. 5942 (See Organization's submission, Pages 12-14, Case 205). Additionally, the Organization cited Award 171 of this Board, which was authored by this same Neutral, and held:
The Majority's opinion offered no explanation for its failure to follow a prior decision of this Board. Consequently, this Board member is at a complete loss in understanding how such an issue could be ignored when a review of the Carrier's correspondence reveals that nowhere during the on-property handling or in its submission did the Carrier assert that the train crew employes did not have pertinent firsthand knowledge of the incident. To the contrary, the Carrier's correspondence directly implicates the train crew as having relevant information. In this regard, attention is directed to the Carrier's December 5, 2011 post claims conference letter which, in pertinent part, reads:
The Carrier made this identical assertion in its submission starting at Page 2. If that was not enough, the Carrier tacitly conceded that the train crew was necessary to establish facts when it entered into the record an unsigned, undated, bullet point that allegedly summarized the "Engine Tape Downloads from UP 4138 (Lead unit on WSGSGT 30)" (Transcript Exhibit 4, Case 205).
These downloads were supposedly from the train in question and allegedly contained the information from the train crew's handling of the train at the time of this incident. Given that this document does not provide an entire copy of the downloads or identify the transcriber, it is of no
Labor Member's Dissentevidentiary value except to emphasize the fact that the Carrier tacitly acknowledged the oration of the train by the train crew was at the center of this issue. Thus, it is repugnant to the concepts of fundamental fairness that the Carrier failed to call those witnesses to the investigation and just as repugnant that the Majority did not address the issue.
Furthermore, a review of the record of either of these cases shows that the Carrier was not interested in developing all the facts and simply wanted to place blame for this accident on the two (2) Maintenance of Way employes who were the Claimants in these two (2) cases. This was readily apparent because neither of the Carrier Supervisors who performed the so-called investigation of the accident and testified at the fogy hearings (i.e., Messrs. Schupp and Sullivan) bothered to question or interview the train crew at any time relative to either case. First, we direct attention to the transcript where Supervisor Sullivan tested that he did not question the train crew. The pertinent part of the transcript reads (Tr.P.58, Case 205):
As the above-listed awards held, a fair and impartial hearing requires the Carrier develop all relevant facts and present all witnesses with firsthand knowledge of the incident under investigation. The Majority's decision does not even consider the Organization's argument in Foreman Seiler's case that there was not a fair and impartial hearing, but instead goes on to find that both Claimants provided an admission of guilt. However, even if that were the case (which it was not) the fact is the Carrier is still contractually required to provide a fair and impartial hearing prior to assessing any discipline. This is a requirement of the clear and unambiguous language of Rule 22(a)(1)which, in pertinent part, reads:
It is axiomatic that all facts must be established during the formal investigation because the discipline process includes a multitude of factors that would not only fully flush out guilt or Labor Member's Dissent Awards 183 & 184 of PLB No. 6402 Page 4 innocence, but would shed light on due process, the
information within the train crews expertise at a job briefing in connection with the air brakes. Maintenance of Way employes are not qualified train operators. The fact that these things are beyond the Claimants' normal duties and expected knowledge is echoed by the Charging Officer's testimony in answering questions from the hearing officer which, in pertinent part, reads (Tr.P.37, Case 205):
While the Maintenance of Way supervisor admits he has no knowledge of the operation of trains, the Majority in this case essentially found the Maintenance of Way crew responsible for identifying and extracting information that is within the trains crew's expertise and responsibility. Moreover, it was testified to by another supervisor, (i.e., Supervisor Sullivan) that the normal operating procedure for the train crew is to have air to the cars. This is evident by Mr. Sullivan's answer to Claimant Seiler's questioning (Tr.P.51, Case 205):
The premise of the Majority's decision is unreasonable because it assumes that the Claimants have expertise in an area of specialization beyond their normal responsibilities and that they should have had knowledge that the train crew was not operating the train in normal fashion. In this regard, the basic elements of just cause require the Carrier demonstrate that the Claimants were trained in train operation and braking and they ignored that training. The Claimants were not so trained and to meet its burden of proof the Carrier was required to show a rule or procedure supporting its position that it was the Claimants' responsibility to understand and extract train operating and braking procedures that were within the train crew's expertise and responsibility. The Carrier did not identify any such training, rule or procedure. There is no way to determine why the train crew did not explain to the Claimants that it was not using the normal procedure of Labor Member's Dissent
Labor Member's DissentThus, even though the train crew's determination not to have air attached to the brakes very possibly contributed to the accident, once the train crew was given the instruction to be prepared to stop it was incumbent upon the train crew to calculate tonnage, braking distance and other pertinent factors and bring the train to a stop under the procedures it chose to operate it under.
The Majority's opinion that the Claimants alleged failure within the job briefing to discuss the train crew's use of air brakes contributed to the accident is simply not proven because there is no evidence that the alleged failure to discuss the air brakes caused the accident, or that the accident would not have occurred had a discussion about air brakes taken place. The Majority's findings are based on speculation and assumption and are contrary to the only firsthand accounts provided at the investigation by the Claimants that it was the train crews train handling that was the direct cause of the impact.
CLAMS WERE NOT REQUIRED TO CONTACT THEIR SUPERIOR IN CONNECTION WITH THE TRACKER AND THEIR FAILS TO DO SO DID NOT CONTRIBUTE TO THE CAUSE OF THE ACCIDENT.
contributed to the cause of the accident because they failed to contact a superior in connection with the problem they were having with the tracker.
The first problem with this finding is that it changes the well-established principle that the burden of proof in discipline cases is on the Carrier. This was not a matter of the Organization explaining the Claimants' decision not to contact a superior. In determining a rule violation, it was incumbent upon the Carrier to establish that the Claimants were in fact required to contact their superior under the circumstances. In determining whether the Claimants' actions contributed to the accident it was incumbent upon the Carrier to establish that the accident would not have occurred had the Claimants contacted a superior. However, the Carrier did not establish those facts. Instead, the facts of record establish that the train crew was responsible for the accident and there is no proof that if the Claimants had contacted their superior the accident would have been prevented. Moreover, the relevant supervisor did not testify that he would not have permitted the move with the tracker the way it was and even if he had it would have been nothing more than second-guessing the Claimants' actions. The Claimants were given an assignment and the Carrier determined that they could carry out that assignment without direct supervision. But, even if it were Claimants' error in not contacting their superior, the Majority's conclusion that the failure to contact a superior was a contributing cause of the accident is not based on facts established in Labor Member's Dissent