()n September 16, 2011, Claimant was notified that he had been found guilty as charged and was assessed a Level 3 discipline and a five day suspension without pay.
The facts indicate that on August 15, 2011, at the close of the workday the Claimant was parking his tamper in a designated track when he allegedly ran through a switch in the Galveston Yard causing it to be derailed with damage to the switch.
It is the Organization's position the Carrier failed to meet its burden of proof because (1) the Claimant was instructed by the Employee In Charge (EIC) that the switch leading to the track where the gang was to park its machine was lined properly; (2) there was a possibility that a member from a train crew working in the vicinity of the track where the gang was to park its machines may have operated the switch leading to the track and left it lined improperly; (3) the Claimant was instructed to hook up and tow additional machines to his tamper machine thus decreasing the machine's ability to effectively come to a stop; and (4) the fact that the mechanics assigned to the Claimant's gang did not perform the necessary repairs to the tamper machines rear brakes when informed by the Claimant on the date prior to the alleged incident that the brakes needed repair all show that the Claimant did not violate the cited Rules in the Notice of Investigation. It concluded by requesting that the discipline be rescinded and the claim sustained as presented.
It is the position of the Carrier that the evidence showed that the Claimant ran through the switch at Mile Post 37.2 on Galveston Subdivision. It argued the Claimant had the ultimate responsibility for making sure everything was properly aligned and it did not matter whether someone else told him the switch was aligned for his movement. It also pointed out there was a red flag to show Claimant that the switch was lined against him. Simply put it asserted the Claimant should have double checked the switch before proceeding into the hole. It further argued that assuming for the sake of argument that the brakes were not operating properly the Claimant had to be aware of that fact as he had operated the machine all day and had the responsibility for the status of all of the machine's safety functions at the time of the incident, therefore, he was still responsible for the accident. It closed by asking that the discipline not be disturbed and the claim remain denied because it was in accordance with the Carrier's disciplinary policy.
The Board has thoroughly reviewed the transcript and record of evidence and has determined that no procedural errors occurred during the Investigation and the Claimant was afforded his Agreement "due process" rights.
There is no dispute between the parties that the Claimant ran through the switch at Mile Post 37.2 on Galveston Subdivision. The Organization argued that the circumstances of the situation mitigate on behalf of the Claimant especially because he was told by the Employee in Charge (EIC) all switches were lined for his movement and that it was clear to enter the track where his gang was parking their machines as well as the other reasons listed above.
Rule 70.1 states in pertinent part that employees are to be "aware of their surroundings and maintain awareness to avoid risks associated with required tasks and work." Rule 1.1.2 requires employees to be alert and attentive when performing their duties and Rule 8.2 states in part that "employees operating switches and derails must make sure: the switches and derails are properly lined for the intended route." The aforementioned Rules have a common theme that the Claimant is ultimately responsible for making sure everything is properly aligned and if a switch or derail is not properly aligned, then the Claimant is responsible for changing it. The record indicates the Claimant fueled his machine prior to proceeding into the hole and tying it up which created a lapse in time from when he heard the switches were aligned and when he actually proceeded through the switch. The record further shows that there was a red flag to show Claimant that the switch in question was lined against him. The Claimant should have been more attentive to his surroundings and he should have double checked the switch before proceeding into the hole. Substantial evidence was adduced at the Investigation that the Claimant did run through the switch and derailed the machine with some damage to the switch.
The only issue remaining is whether the discipline was appropriate. At the time of the incident Claimant had approximately seven years of service with a good work record. The accident was not serious, but as determined in Third Division Award 37266 in pertinent part: "...The minor nature of the accident does not excuse the error." Review of the discipline reveals that it was assessed in accordance with the Carrier's UPGRADE Discipline Policy and it was not excessive, arbitrary or capricious, therefore, the Board finds and holds the discipline will not be set aside and the claim will remain denied.
