Machine Operator M. M. Dawson (hereinafter referred to as "Claimant" or "Mr. Dawson") was hired by Carrier on August 26, 2002. At all times relevant to this issue, the Claimant was assigned to System Production Gang ( SPG) Machine Operator position 5XC7-67H.
On February 28, 2007, Claimant and his gang were replacing old rail and resurfacing portions of track near milepost OZA 381.80 in Evansville, IN. As the Claimant was threading the new rail with his crane, the rail began to "bunch and kick". Due to the "unsafe situation", Claimant's supervisor, Foreman R. Price instructed Mr. Dawson to "cease operations" while he requested a second crane to help "relieve the kinks". However, Mr. Dawson did not follow his foreman's instruction, instead replying, via his radio, "I think I can get it". As a result of Claimant's
COMPANY CASE NO. 12(07-0702) failure to follow his supervisor's directive, the crane which Claimant was operating tipped over on its side.
Thereafter, in a letter dated March 6, 2007, the Claimant was instructed to attend a formal investigation scheduled for March 21, 2007. The letter stated, in pertinent part:
Following one (1) mutually agreed upon postponement, the investigation convened on April 10, 2007, with both the Claimant and his representative in attendance throughout the proceedings. On April 23, 2007, Carrier Assistant Chief Engineer for SPG(s) notified the Claimant that:
The Organization protested the discipline in a letter dated May 3, 2007. In that correspondence, BMWEDViceChairmanGriffthargued: "7his Organization takes strong exception to the fact that the terms of the Agreement were not complied with in accordance with Rule 24 avid Rule 25 ofthe June 1, 1999 Agreement. Agreement Rule 25 (Hearings), specifically states `the exact offense' will be contained in the charge letter. This was not the case. The proper objection was made on the record, however, the hearing officer continued with the investigation which led to the discipline ofMr. Dawson. The Carrier obviously made an investigation prior to serving the notice of charge against Mr. Dawson, instructing him to appear at the hearing, however, failed to list `specific' charges within the charge letter".
With regard to the merits of the dispute, the Vice Chairman asserted: Mr. Dawson was instructed by the Carrier to operate a `new' crane and Mr. Dawson was new to the crane and was
attempting to handle I, 440 feet ofrail. And, according to testimony by K. E. Robertson, who charged Mr. Dawson, 'the rail just tries to bunch up itself and doesn't want to move so that makes the accordion type effect and you're trying to get the rail to move a little bit at a time instead of doing it all in one motion. We should have took two or three steps to make this happen... "'. In that connection, the Vice Chairman noted that Mr. Robertson spoke of the Claimant as "a good crane operator", and argued that "mitigating circumstances" may have caused the crane to tip over.
In a denial letter dated September 27, 2007, Carrier asserted that the Claimant was: 1) afforded a fair and impartial investigation in accordance with the Agreement; 2) Carrier sustained its burden ofproof ofproducing sufficient evidence proving Claimant's guilt; and, 3) the discipline assessed was warranted and fully justified.
With regard to the Organization's procedural objection that the Carrier had failed to list "specific charges". Carrier maintains that the "exact offense was clearly outlined in the charge letter ".
Carrier went on to assert that: "The Carrier is not contractually bound to list specific rules that were violated as the purpose ofthe investigation is to produce evidence to judge ifa specific rule was violated Therefore, the charge letter provided to Claimant Dawson was in accordance with the language of the Agreement ".
"roved that Claimant Dawson is guilty of insubordination in that he failed to follow the instructions of Foreman Price which resulted in an equipment accident ". Carrier further emphasized that Mr. Dawson's failure to follow his supervisor's instruction was "aflagrant violation ofCompany policy ".
Finally, with regard to the assessed discipline, Carrier maintained that Claimant Dawson's discipline of thirty (30) actual days' suspension is "appropriate for the seriousness of the proven charges".
At the outset the Organization asserted that Carrier violated Rule 25(d) of the Agreement, which states, in pertinent part: "Are employee who is accused of an offense shall be given reasonable prompt advance notice, in writing, of the exact offense of which he is accused with copy to the union
representative". Carrier's original charge letter set forth: "On this date, while threading rail into the track, the crane you were operating rolled onto its side. Based on the incident, there may have been a violation of CSX Operating Rules, Safety Rules and Procedures. The purpose of the fonnal investigation will be to discover whether or not any rules were violated". In the circumstances, the ``exact offense" was clearly outlined in the charge letter and we therefore concur with hearing officer Moss who ruled that the charge was "specific enough for everyone to understand what we are here to talk about today...".
Turning to the merits of the dispute, the record evidence supports Carrier's finding of guilt. Following are excerpts from the transcript of the hearing involving the testimony of Manager Robertson and Foreman Price:
When asked if he had given the Claimant "instructions to wait until the other crane came to help", Foreman Price answered in the affirmative, adding that in his opinion, "the Claimant did not follow my instructions".
Although the Organization correctly noted that Mr. Robinson stated that the Claimant "is a good crane operator", that hegs the question before us. The facts of the dispute are clear and simple and have very little to do with the Claimant's prowess as a crane operator, but rather whether Dawson. on February 28, 2006, disregarded his supervisors explicit instruction to "stop movement". The record evidence clearly demonstrates that the Claimant continued to operate his crane after Foreman Price instructed him not to do so, which resulted in the crane tipping on its side. Said actions created an unsafe condition, and resulted in damages to the crane estimated at $35,000. More to the point. the Claimant caused injury to himself and could have injured other employees.
For the proven charge of insubordination Carrier assessed the Claimant discipline of thi rty (30) actual days' suspension. Given the serious nature of Claimant's failure to follow his supervisors directive, the discipline is commensurate with the offense and cannot be considered unduly harsh or inappropriate in the circunnstanees.
