Martin FI. Malin, Chairman & Neutral Member
P. K,
Geller, Employee
Member
M.1. Kovacs, Carrier MIenuer
Hearing Date: April 16, 2003
1. The discipline [three (3) day overhead suspension] assessed to Trackmen M. Shirk
and M.1?earsan for alleged violation of On-Track Safety Rules in connection with
an incident that occurred on March 27, 2002, wac without just and sufficient cattle
and based on unproven charges (Carrier's File 8315-784)
Traalummx M. Shirk and l_ Pearson shall now be exonerated and have the
discipline removed from their records.
FINDINGS:
Public Law Board No. 6466, upon the whole record and all the evidence, frocks and bolds
that Employee and Carrier are employee and catxiex within the moaning of the Railway Labor
Act, as amended; and, that the Board has jurisdiction over the dispute herein: and, chat the parries
to the dispute ware given doe notice of the hearing thereon and did participate therein.
On April 3, 209?, Carrier notified Claimants to appear for an investigation on April 9,
2002, concerning their alleged violations of Track Safety Rules 10() and 902, in connection with
an incident on March ?7, 2002, the same incident as was before this Bowl in Case No. 5, Award
No. 1. The hearing was held as scheduled. On April ?6, 2002, Carrier notified Claimants that
they had been found guilty of the charges and each assessed a three day record suspension.
The record reflects that on March 27, 2002, Claimants and their Foreman were clearing
snow from a switch when Claimant Shirk noticed a pull-apart on the main line. The
employees
prepared to asp a controlled burn to repair the defeat. The Foreman ryas responsible for getting
'f ~9~
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track authority. The Foreman contacted the dispatcher and advised the Dispatcher that lass
location was MP 11(3.97 and that he and his crew would be working ,vest of McKinley. In fact,
they were working east of McKinley. As a result, the Dispatcher placed a block west of
McKinley between McKinley and South Bend instead of blocking flee track where Claimants and
the Foreman were working. Because the track where Claimants and the Foreman wore working
was not blocked, Train 761 name through. The three employees were able to run out of the quay
of the train and no one yeas hurt.
The record also reflects that the Foreman failed to write down the track and the time fleet
the track was taken out of service, brat advised both Claimants that ho had contacted the
Dispatcher and had taken the track out of service.
Rule 100 provides:
Each roadway worker is responsible for determining that on-track safety is provided
before fouling any track or assuming a position from which he or she could potentially
foul a track.
A roadway worker at road way machine is fouling a track within four feet of the field side
of the near running rail.
Rule 9(32 provides:
Management and individual roadway workers jointly share the responsibility for ensuring
that proper on-track safety procedures are followed when workers are fouling the track.
The Organization contends that Claimants compiled with Rules 100 and 1302 by
ascertaining from their Foreman that the track had been taken out of service. Carrier contends
that Claimants were obligated to ask their Foreman to show them the written documentation that
the track was out of service. In Carrier' s view, had Claimants insisted on seeing the
documentation, the incident would not have occurred,.
Can their face, the rules do not expressly require Trackmen to ask their Foreman for
documentation that track has been taken out of service. The rules also do prat expressly state that
Trackmen may rely on oral assurances from their Foreman that the track has been taken out of
service.
Given the generality of Rules 100 and 902. it was incumbent on Carrier to prove by
substantial evidence that Claimants could not comply with the rotes by relying on their
Foreman's oral assurances that the track was out of service but were obligated to request to see
the documentation. We can find no such evidence in the record.
The investigation of Claimants and their Foreman occurred in
the sauna
hearing. On
direct examination, the Track Supervisor gave no testimony concerning the culpability of
Claimants. His entire testimony concerned the Foreman'-, culpability. On cross-examination, the
Track
Supervisor
testified as follows:
Q. As far as Mr, Pearson and Mr. Shirk are concerned here, in the charges they're
brought up an, if there's no paper-if there's no form to view, then they would have to go
on the word of the foreman; is that correct?
A. That's correct.
Q. Unless they wets privy to the radio conversation with the dispatcher; is that
correct?
A. That's correct.
Q. Is that generally - them°s not requirement that they would -if they saw no paper,
no form filled out and didn't hear the conversation, are they required to contact the
dispatcher themselves?
A. No.
Carrier points to testimony from both Claimants acknowledging that they jointly shared
responsibility for ensuring that on-track safety procedures are followed when foaling the track.
However, that testimony is as general as Rules 100 and 902. Lt does not establish chat their
responsibility included asking to see the documentation when their Foreman told them that the
tTack had bin taken out of service. Carrier also points to Claimant Shirk°s testimony that he
usually double checks the foreman on such matters. However, shortly thereafter, Claimant Shirk
also testified that when there is no form to review he reties on the Foreman's word and does vet
contact the Dispatcher to doable cheek the Foreman. In this regard, Claimant Shirk's testimony
minors the testimony of the Track Supervisor.
Thus, our review of the record fails to disclose any evidence that Claimants were
obligated to question their Foreman's oral assurances that the track was out of service and
request to see the documentation. Accordingly, we hold that Carrier failed to prove the charges
by substantial evidence.
Claim sustained.
The Board, having determined that an award favorable to Claimant he made,
hereby orders the harrier to make the award effective within thirty (39j days following the date
two members of the hoard affix their signatures hereto
Martin H. Malin, Chairman
I~.~vacs
Carrier Member
Dated at Chicago, Illinois, September 30, 2003
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~_/
P. K. /Geller
Employee Member