On October 28. 201 1, Claimant was notified that he had been found guilty as charged and was dismissed from service.
The undisputed facts indicate that on September 21, 2011, the Claimant was assigned as a Machine Operator. Claimant attended a job briefng at 6:00 a.m. after which he was instructed to pull his Spike Puller machine up to the derail at MP 620.4. Claimant checked the machine prior to operating it and found it to be in satisfactory condition. Claimant was .joined on the machine by the Forman on the Gang, M. Jeter who wanted to ride with the Claimant to the derail location. Claimant sat on the right side of the machine and Jeter sat on the left. While traveling to the derail location neither employee saw the derail in time and the Spike Puller derailed five feet past the derail.
It is the Organization's position that the Claimant was denied a "fair and impartial" Investigation because he was removed from service prior the Hearing which also showed that he had been pre judged and on that basis alone it argued the Claimant should be reinstated and the claim sustained without even reviewing the merits. However, if the merits are examined it argued there were several mitigating factors such as the fact that the machine's lights were dim, the derail was faded and testicriony of Carrier Officer Hanson suggested that derail sign may not have been the correct reflective sign. It also pointed out that it is clear that machine only traveled five feet beyond the derail which showed that Claimant was operating the machine at a low speed and that coupled with the fact that the "spotter" the Foreman did not see the derail in time as well proved that the conditions were not good for the recognition of the derail. Lastly, it argued that if the Carrier had produced evidence to support their charges, which it did not do, the discipline was excessive for an employee with 17 years of immaculate service. It concluded by requesting that the discipline be rescinded and the claim sustained as presented.
It is the position of the Carrier there were no procedural errors involved in the handling of the Claimant's cases and he was not denied a "fair and impartial" Investigation. It further argued the transcript shows that the Claimant was instructed to pull up to the derail and wait for further instructions. It asserted it was the Claimant's responsibility to operate the machine safely and stop it prior to the derail before reaching the mainline which he did not do because he was negligent in its handling. Additionally, it pointed out that the Claimant did not have a clear disciplinary record as this was his second Serious Level S discipline event within the 12 month review period as he was administered a Level S on September 26, 201 1, for positive test for a controlled substance, thus according to it dismissal was appropriate. It closed by asking that the discipline not be disturbed and the claim remain denied.
The Board has thoroughly reviewed the transcript and record of evidence and are not persuaded by the Organization's procedural arguments that the Claimant was denied a "fair and impartial" Investigation as it is clear that he understood the charges and was well represented by his Organization and was afforded his "due process" Agreement rights. It is determined that the P.L.B. No. 7048
Investigation and appeal process met the guidelines of Rule 13(a) the Discipline Rule and Appendix No. 11.
The Carrier is correct that the Claimant was instructed to pull up to the derail and wait far further instructions and that he failed to stop before the derail. The Organization is also correct that Claimant's co-worker became distracted by a malfunctioning radio and did not see the derail and it was not contested that the derail was faded and the derail sign might not have been the proper size or reflective. The record further indicates there was no damage to the machine and the crew had an approximate 30 minute delay/production loss while re-railing the Claimant's machine. Despite there being some merit to the Organization's argument that there were mitigating factors involved in the accident there was substantial evidence adduced at the Investigation that the Claimant was guilty as charged.
The only issue remaining is whether the discipline was appropriate. At the time of the incident Claimant had approximately 17 years of service with a good work record. However, this was his second serious Level , offense within a 12 month review period. The Carrier's Policy tar Employee Performance Accountability (PEPA) states that two serious Level S violations may result in dismissal, but in this instance the Board finds and holds that based upon Claimant's years of service and good work record the discipline was excessive and is reduced to a lengthy suspension which is corrective in nature and in accordance with PEPA. The Claimant is to be reinstated to service at his former disciplinary status with seniority intact and all other rights unimpaired with no back-pay.
Claim partially sustained in accordance with the Findings and the Carrier is directed to make the Award effective on or before 3() days following the date the Award was signed.
