STATEMfENT OF CLAIM:
Case Ncs. 10
Award No, fi
Martin Fl. Malin, Chairman & Neutral Mem her
P. K. Geller, Employee Member
M. J. Kovacs, Carrier Member
Hearing Date: December 11, 2£103
The discipline (time served, amounting man eighteen day suspension, and
disqualification from operating rules and on-track safety rules) imposed on
Welder C. Dumas for his alleged violation o! On-Track Safety Mule 100 when he
allegedly parked Welder's Truck 179471 within the four foot foaling point at Mile
Post 33.3, at x:30 a.m. on inlay $, 2003, was
without
just and sufficient cause and
based on an unproven charge (Carrier's File 8365-$08)
Welder C. Dumas shall now be compensated for all time post and all reference to
this incident shall be removed fraan his personal record.
Public Law Board No. 6466, upon the whole record and alt the evidence, finds and holds
that
Employee and
Carrier are employee and carrier within the meaning of the Railway Labor
Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties
to the: dispute is=ere given due notice of the hearing thereon and did participate therein.
On May 8, 20113, Carrier notified Claimant to appear for an inveat:gation an May 15,
2003, concerning his alleged failure to comply with On-Track Safety Rule 100 when he
allegedly
parked Wzlder's'Truck 179471 within the four foot fouling point at Mile Post 333, at 3:3i3 a.m.
on May 8, 2003. The hearing was rescheduled to and held on May 14, 2003, On May 2$, 2003,
Carrier notified Claimant that he had been found guilty of the charge and had been assessed time
served, lion May 9 to May 27, 2003, and was disqualified on the operating rules and the ontrack safety rules.
The record reflects that on May 8, 20013, Claimant and a Trackman drove to the site with
Claimant operating Welder Truck 17471. Claimant parked the truck, opened the doors and
noticed that one «f the shelves was dislodged. Claimant was repairing the shelf when tire
Trackman, who was serving as watchman, told him a train was corning. Claimant closed the
truck doors anti, as the train went by, it sucked the doors open and struck a door. With the doors
closed, the truck was approximately four feet, six inches from the near manning rail, but with the
doors open, the truck was within four feet of the rail.
Rule 1011 provide-,:
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 or roadway machine is fouling a track within four feet of
the field side of the near running rail.
The Truck Supervisor testified that if arty part of a truck's equipment swings out within
the fouling point, it is considered to be fouling the track. He further testified that Claimant told
him that apparently the door did not latch when he closed it. The Trackman testified that if the
door latches on the truck were tricky and if one did rat put one's weight into the rubber-, the door
could be stacked open when a train passes. The Yard Foreman testified that Claimant
acknowledged that he was parked tae close to the rail. Considering the record as a whole, we
find that Carrier proved the charge by substantial evidence,
We turn to the penalty assessed. 'rho Yard Foreman and the Track Supervisor testified
that in the past they had seen some incidents handled informally with a waiver and assessment of
demerits. The Organization contends that Carrier should have handled the instant matter in the
same way. Carrier certainly has the option to exorcise its discretion to handle a matter
informally. As an appellate body, however, our role in reviewing the penalty is confined to
determining whether it was arbitrary, capricious or excessive. The evidence falls short of
establishing that barrier had a policy of handling these incidents informally or that Carrier always
hurdled these incidents informally. We recognize that Claimant had a mood retard prior to the
incident in question. However, the incident involved a collision between a train and part of a
track, a very serious matter. Under the. circumstances, we cannot say that the penalty was
arbitrary, capricious or excessive.
Claim denied.
A J. Kovacs
Carrier ?ulsznber
Mai-tin H. Malin, Chairman
P, lt. Geller
Employee Member
Elated at Chicago, Illinois, March 13, 2004