Public Law Board No. 6402, 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.
On June 15, 2011, Claimant was directed to attend a formal Investigation on June 29, 2011, which was mutually postponed until July 6, 2011, concerning in pertinent part the following charge:
On July 25, 2011, Claimant was notified that he had been found guilty as charged and was assessed a Level 5 discipline and dismissed from service.
The facts indicate that on June 6, 2011, the Claimant was asked to help unload a tamper from a semi-truck on Gang 9295 in the Eureka Yard on the Eureka Subdivision. Ramps are normally used to lower the machine onto the rail, but in this instance they were not used. In the process of unloading the tamper it dropped onto the rail causing the transmission bracket to break and the transmission to fall to the ground and because of that a formal Investigation was called.
It is the Organization's position that the Carrier did not meet its burden of proof because a Track Supervisor, Foreman and the Tamper Operator that off-loaded the machine in question participated in the pre-off-loading discussion where the Claimant explained ramps should be used to off-load the machine and they should not try to unload on a curve and he raised the question as to whether there was another spot in the yard that could be used where the tracks were straight and it would be safer. It asserted that the other employees including two superiors decided that the machine should be off-loaded at its current location and the Claimant was required to assist the Supervisor and Foreman in their plan. It also argued that Manager of Track Programs Britt acknowledged that it would have been the Supervisor's responsibility to stop the employees before they unloaded the tamper if the process being used was improper or unsafe. It her argued that Mr. Britt implied Supervisor Rivera was not responsible because he was not present when the tamper was off-loaded, which it disputed stating that Claimant provided unrefuted testimony that Rivera was present and actively engaged in the unloading of the tamper. It suggested that it is unreasonable that Rivera actively participated and condoned the process for performing the work and the Carrier then charged and dismissed Claimant for following instructions. Simply put the Claimant was treated disparately as none of the other employees
involved in the offloading incident were charged. It concluded by requesting that the discipline be rescinded and the claim sustained as presented.
It is the position of the Carrier that the record shows that on the date in question Claimant assisted semi-truck driver, C. Thomas, to unload a Jackson 6700 Tamper from the truck's lowboy trailer. It asserted that the proper way to unload a tamper is by aligning the trailer with a straight piece of track. After aligning the trailer with the track, ramps are used to lower the machine onto the rail. In the instant case, the trailer was aligned on a curved piece of track, even though there were straight sections that could have been used in the Yard. It argued that on page 20 of the transcript the Claimant acknowledged that he knew the tamper should not have been unloaded on a curved track and it was wrong to unload the tamper without ramps, and yet he chose to go along with it anyway. It reasoned that the Claimant was negligent to unload the tamper in that situation when he knew it was unsafe and against the Rules. It closed by asking that the discipline not be disturbed and the claim remain denied.
The Board has thoroughly reviewed the transcript and record of evidence and it is determined that the Investigation and appeal process met the guidelines of the Agreement and Claimant was afforded all of his "due process" Agreement rights.
The Board notes that since the parties presented their respective arguments in the instant case the Carrier in its letter of December 27, 2010, chose to reinstate the Claimant to service with seniority intact and all other benefits unimpaired leaving the Board to determine whether the discipline reduced to a lengthy suspension was appropriate and whether or not the Claimant is entitled to back pay for any or all time held out of service.
Review of the record indicates that the Organization's recitation of the events of June 6, 2011, are accurate that Track Supervisor Rivera, a Foreman and the Tamper Operator that offloaded the machine in question participated in the pre-off-loading discussion where the Claimant explained to the group that ramps should be used to off-load the machine (See Transcript, pages 20 and 25) and where he her raised the question as to whether or not there was a straight section of track where the machine could be of loaded (See Transcript, page 25) since that would be safer for unloading. After hearing the Claimant's comments the Supervisor, Foreman and Tamper Operator rejected those suggestions and decided to off-load the machine at the location it was setting. At that juncture the Claimant followed managerial directions and assisted in the unloading of the machine pursuant to those directives. The record her reveals that the Claimant offered un-refuted testimony that Supervisor Rivera was on site and assisted in preparing for the ofd loading by placing wood so that the tamper would have some cushion to come off the semi-trailer (See Transcript, page 22). Manager Track Programs Britt testified on page 13 of the transcript that if a Supervisor was at the location of the ofd loading it was his responsibility to stop the employees before they unloaded the tamper if the process being used
k. No. 6402
The Board finds and holds that the discipline is rescinded in its entirety and is removed from the Claimant's personal record and the claim is sustained in accordance with part 2 of the statement of claim.
Claim sustained in accordance with the Findings and the Carrier is directed to make the Award efTeetive on or before 30 days following the date the Award was signed.
