In accordance with the provisions of Rule 25, Section 3 of the June 1, 1999 Agreement, the following will serve as our appeal of discipline assessed to BMWE employee K. M. Pritchett ID4* * * * *, as a result of the hearing held on October 23, 2006 at Birmingham, AL. It will be noted that the filing of this appeal does not limit the employee's right to any alternative resolution, including expedited handling, should he so choose.
For the reasons stated, plus the objections raised at the hearing, the charge letter and all matter relative thereto should be removed from Mr. Pritchett's personal record file and Mr. Pritchett should be made for all losses suffered.
Machine Operator K.M. Pritchett ("Claimant") was hired by the former Seaboard System Railroad Company (predecessor property of CSXT) on February 10, 1981. At the time this issue arose, the Claimant was assigned as a Spike Driver Operator on System Production Gang ("team" or "gang") 5XT1. On October 4, 2006, Claimant's gang was working near Athens, AL performing resurfacing tasks. At approximately 1515 hours, Claimant, who was working as the second (2"d) operator on Spike Driver Machine Number four (4), failed to see Spike Driver Number three (3)
come to a stop, and collided with Machine 3, causing approximately $800.00 worth of damage to both Spike Drivers 3 and 4.
As a result of Claimant's "failure to pay attention", he was instructed to attend an October 23, 2006 formal investigation, on the following charges: "In connection with the above (October 4, 2006) incident, you are charged with failure to properly and safely perform your duties, carelessness, reckless operation, andfailure to controlyour machine, andpossible violations of, but not limited to, CSXT Operating Rules GR-2, 720, and 727, CSX Safeway Rules GR-3 and ES-15". The investigation was convened as scheduled withthe Claimant and his representative in attendance. Thereafter, in an October 19, 2006 letter, Carrier informed the Claimant that he had been found guilty of the charges, noted supra, and assessed a forty-five (45) days actual suspension.
BMWE Vice Chairman Smith appealed the discipline, alleging, at the outset: "Rule 25 recognizes the Carrier's right to withhold an employee from service pending charges and hearing when a major offense has been committed and such employee is suspected to be guilty thereof: In such cases, the employee withheld will be given written confirmation. First, our contention is that the incident was not a major offense ....[slecond, the Carrier has hadthepracticeofusingthecharge letter as the written confirmation that the employee is being withheld, which we do not concede as meeting the Carrier's obligation under Rule 25"
Regarding the merits of the dispute, the Vice Chairman argued that: "For spiking of ties the gang has four (4) spike driving machines. The `normal' crew ofeach spike driving machine consists of3 employees. 2 of the employees drive spikes (one employee on each side of the machine) and the 3" employee keeps the spike trays loaded with spikes on each spike driving machine. On the date of the incident, the machine to which the Claimant was assigned had no employee for the purpose
AWARD No.33 NMB CASE No.33 UNION CASE No.D21147706 COMPANY CASE No. 12 (06-1310) of keeping the spike trays loaded Hence, the Claimant had the additional duty of loading the spike trays. Typically, the machine is indexed, or moved, over a crosstie where the tie nippers are lowered to grab the tie and pull it up against the base of the rail, then the spikes are driven into the tie, the nippers released and the machine is indexed ahead to the next tie. The incident occurred while the machine was being moved ahead to the next tie. Assuming, arguendo, that Carrier will contend that both employees share responsibility in preventing one machine f1^om coming into contact with another, the operator's view is severely restricted, the Carrier should have an additional employee (3'° man) on the machine to help watch outfor possible collision while the machine is being moved ahead, as it did on the other 3 machines, the Carrier could have had the machine ahead sound its horn to warn that it was stopped, which is a requirement of the Carrier Rules, and the Carrier could have an ~lssislant Foreman, assigned to the charge of the spike drivers, to protect against the collision, which is part of his duty ". Finally, the Vice Chairman noted that since the Claimant "provided Carrier with over 22 years of quality service", the treatment of the Claimant by Carrier was "unwarranted".
In a March 22, 2007 declination of the appeal, Carrier confirmed the parties' conference held on February 22, 2007. Initially, Carrier noted that the Claimant was provided a fair and impartial investigation in accordance with Rule 25 of the Agreement. Regarding the merits of the dispute, Carrier argued: "Throughout the investigation as well as in the discipline appeal letter, Vice Chairman Smith consistently tried to shift the blame to the other parties. Testimony from the Claimant showed that this was not the first time he has operated a spike driver without a third man ...Nevertheless, if the Claimant needed to assist in the loading of spike trays, he should have stopped the forward movement of the machine, loaded the trays, and then proceeded the forward
AWARD No.33 NMB CASE No.33 UNION CASE No.D21147706 COMPANY CASE No. 12 (06-1310) movement of the machine when the track was clear ".
In terms of the quantum of discipline, Carrier stated that the forty-five (45) suspension was "fully justified", arguing that: "Within Mr. Smith's November 21, 2006 appeal of discipl ine letter he stated that the Organization did not recognize this incident as a major offense thus not warranting the Claimant's removal from service. However, as the Claimant violated several Operating Rules resulting in an on-track collision, which could have resulted in injuries and severe damage to Company property, the Carrier had no alternative but to handle this as a major offense, resulting in the Claimant's immediate removal from service pending the outcome of the hearing".
The record demonstrates that the Claimant was afforded a fair and impartial investigation in accordance with Rule 25 (Discipline) of the Agreement and was present throughout the proceedings, accompaniedby his duly authorized representative. Regarding the merits of the dispute, the Carrier clearly demonstrated Claimant Pritchett was indeed guilty of: " failure to perform duties safely, carelessness, reckless operation and failure to control his machine on October 4, 2006", actions which clearly violated CSXT Operating Rules GR-2, 720, 727 and CSX Safeway Rules GS-3 and ES15. Moreover, Claimant Pritchett admitted during his testimony that he was not "paying adequate attention" while operating the equipment:
AWARD
Claim denied.