Production Trackman M. M. Dawson ("Claimant") was hired by Carrier on August 26, 2002. At the time this issue arose, the Claimant was a member of a System Production Gang (SPG) assigned to position 6XC9-081. On July 23, 2007, the Claimant and his team were performing resurfacing tasks, working in the vicinity of Martin, KY. Pertinent to this dispute, Mr. Dawson was operating a "Rubber Tired Crane" (hereinafter referred to as "the crane") threading new rail into the track. Of note, Trackman R. Maney was working immediately behind the crane, grinding rail. While the Claimant was threading rail he was also backing up toward Trackman Maney who was behind him, grinding rail. At some unspecified point during the workday, the Claimant backed into Mr. Maney's "Red Zone" causing the Trackman to "jump out of the way to avoid injury...".
As a result of the incident, on August 1, 2007, Carrier instructed the Claimant to attend an August 13 formal investigation regarding the following:
"The Carrier charged Mr. Dawson with failure to properly perform the responsibilities of his assignment and with, failure to control his machine. However, the Carrier did not prove this with testimony or facts. Mr. Dawson had control of his machine at all times, his machine did not get awav from him he was not doing excessive speed. Mr. Dawson sounded the horn three times... he was working in a backward direction which is a difficult job in itself... "
In a December 13, 2007 letter, Carrier Director Labor Relations Amidon denied the claim, maintaining that the Claimant was informed of the "exact charges" in the August 1, 2007 notice. With regard to the Organization's allegation that Carrier violated the Claimant's due process rights because a postponement was not granted, Carrier noted that the argument was made "during closing comments in what appears to be a belated request, and only after all the evidence and testimony was
presented against the Principal. Consequently, it is obvious that the objection was only an afterthought and ofsuch insignificant importance to the Organization that it was brought up at the conclusion. At best, your assertions upon appeal are disingenuous at best and of little cause-". Regarding the merits, Mr. Amidon argued that: "Sufficient evidence exists to demonstrate
Further efforts to resolve the dispute were not successful, therefore, the issue has been placed before the Board for adjudication.
At the outset, the Organization alleged certain procedural violations, which it maintained, were fatal to Carrier' s case. First, the Vice Chairman maintained that the Claimant was not informed of the "exact charges" against him in Carrier's formal investigation notice dated August 1, 2007. However, on that point we do not concur. The Carrier's letter stated the following:
"The purpose of this letter is to determine the facts and place your responsibility, if any, in connection with an incident when, as the assigned operator of a Rubber Tired Crane, you entered the Red Zone of another employee who was grinding rail causing the employee to jump out of the way while pushing the grinder into the clear. In connection with the matter, you are charged with failure to properly and safelyperform the responsibilities ofyour assignment, failure to control your machine andpossible violations of, endangering another employee, and possible violations of, but
COMPANY CASE NO. 12(07-1128) not limited to, CSX Transportation Operating Rules - General Regulations GR-2, GR-8; Section 7 On-Track Worker Rules 713 and 727; as well as, CSX Safe Way General Safety Rule GS-1 - land Engineering Department Safety Rule ES-15", In the circumstances, the Claimant was clearly informed of the "exact charges" for which he was being summoned to the August 13, 2007 formal investigation.
Secondly, the Organization asserted that Claimant's procedural rights were trammeled when Carrier "refused" to postpone the August 13 investigation. According to the Organization, it did not receive notification of the hearing until August 9, 2007, and when the Vice Chairman requested a postponement, Carrier "refused" to grant same because the "hearing officer already has his plane ticket". However, the record evidence indicates that the assertion is not accurate. Specifically, in uncontested testimony, Carrier Officer Amidon stated that the Organization did not report that it had not received Carrier's August l letter until August 9, until the "end" of the August 13 hearing, during closing arguments. In that connection, the record is bereft of any correspondence in that regard, nor do we find any evidence which supports the Organization's assertion with respect to the alleged postponement request.
Turning to the merits of the dispute, the facts of the case are largely uncontested. In the midst of his July 23. 2007 workday, the Claimant, while operating a crane, backed into co-worker Maney's Red Zone, forcing Mr. Maney to "jump out of the way" to avoid being injured. As a result, the Claimant was discharged. The Organization asserts that the discipline of dismissal is inappropriate in the circumstances, however, we do not concur.
Specific to the case now before us, the record evidence demonstrates that on July 23, 2007, Claimant Dawson, while operating a crane, entered the "Red Zone" of fellow employee Maney who was grinding rail. As a result, Mr. Maney was forced to "jump" out of the way, at the same time pushing the grinder into the clear. A cursory review of the Claimant's personal record reveals that this is the third (3` d) claim on behalf of this employee, the two prior of which emanated from a February 28, 2006 incident. On February 28, 2006, while resurfacing track in Evansville, IN, Mr.
Dawson failed to follow his supervisor's directive to stop his crane. As a result, the crane which the Claimant was operating tipped over, causing an injury to the Claimant and approximately $35,000 worth of damage to the crane. Thereafter, the Claimant failed to report his injury and was summoned to an investigative hearing for "failure to follow Carrier's regulations when seeking riedical attention". Following an April 10, 2007 hearing, the Claunam was found guilty of the charges and was assessed a fifteen (15) day actual suspension. Thereafte=, on March &, 2006, the Claimant was summoned to a second investigation, regarding the same February 28, 2006 incident, to beheld on March 21, 2006, specifically in regard to a charge of "insubordination" for failing to follow his supervisor. Foreman Price's directive to "cease operations"when the rail began to buckle. Similarly, the Claimant was found guilty of the charge(s) and assessed tree discipline of thirty (:30) actual days (upon his return to work) beginning May 27., 2007 and ending on June 20, 2007.
Premised upon Claimant's personal record noted supra, the Organization's assertion that the discipline of dismissal is "inappropriate, capricious and harsh" is without merit in these circumstances. Therefore, this claim must be denied.
