Public Law Board No. 704$, upon the whole record and all 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 have participate in accordance to the Agreement that established the Board.
On April 7, 2011, Claimant was directed to attend a formal Investigation on April 29, 2011, which was mutually postponed until May 6, 2011, concerning in pertinent part the following charge:
On June 3, 2011, Claimant was notified that he had been found guilty as charged and was assessed a Level S 3U-Day Record Suspension with a three year probationary period.
The facts indicate that on March 31, 2011, the Division Engineer, Roadmaster and two Assistant Roadmasters arrived at a derailment site at Crossover 1429 in the Mykawa Yard, wherein a accident had happened the day before. The Carrier Officers approached the work group that was cleaning up the area and were stopped by the Foreman who gave them a job briefing. The Foreman told them they were working using a lookout form at which time the Division Engineer noticed the backhoe that was being used was fouling the track. Because of that alleged safety violation the Officers removed the work group from service and subsequently a fogy Investigation was called concerning the Claimant's conduct while performing services as a Truck Driver.
It is the Organization's position that a review of the transcript reveals that Foreman Vega was the employee in charge at the derailment site and Claimant was a Truck Driver assigned to help clean up the areas It asserted the combined crew met in the Section's work truck for a job briefing at which time the Foreman/EIC (employee in charge) Vega, briefed the group that he had talked to the Yard Master and had permission to be working at that location and he (Vega) would be acting as a Lookout. The plan for the job was the Section forces were going to walk a stretch of yard track picking up material and depositing it in the front bucket of the backhoe as it followed parallel to the tracks. It argued the Foreman changed the job plans when he directed the Backhoe Operator to swing his boom across the track and use his bucket to knock down a dirt pile without knowledge of the Claimant and by the time the Claimant was in a position to have knowledge of that change and voice any opposition the event had already occurred. It argued the Carrier did not meet its burden of proof and because of that it concluded by requesting that the discipline be rescinded and the claim sustained as presented.
It is the position of the Carrier that when Foreman Vega instructed the Backhoe Operator to swing his boom across the track and knock down a pile of dirt with the backhoe bucket the Claimant should have voiced his opposition because the backhoe was fouling the tracks. It argued he had a responsibility to assure that he was working safely so as to protect himself, his co-workers and equipment on the track and in this instance he failed to do such. 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 it is determined that the Investigation and appeal process met the guidelines of Rule 13(a) the Discipline Rule and Appendix No. 11.
The Board notes that this is a companion case to Award Nos. 115 and 118 which involves the same incident, but different Claimants.
The Carrier's argument is that the Claimant had the right to challenge Foreman Vega's directive as it was an unsafe act and he would not have been disciplined as he had a right to make a good faith challenge and that he should have exercised that challenge whereas the Organization argued that the Claimant was at the back of the truck when the Foreman issued his instructions and was not in a position to see or forewarn his co-workers that they had been instructed to work in a unsafe manner.
The Board has found for the same reasons expressed in Award No. 115 that the record indicates that Foreman Vega's instructions to the Backhoe Operator appear to have been an afterthought that he did not discuss with anyone beforehand. Those instructions were done in a effort to clean up the derailment site, but they were done in a hasty and careless manner while the Claimant was at the rear of the pickup getting a drink of water and by the time the Claimant knew what had transpired the Backhoe Operator had completed the assigned task and a forewarning would have been an exercise in futility as the deed was already done. The Board is not persuaded that the Claimant knew what his Foreman had decided to do or that he could have forewarned his co-worker not to perform an unsafe act while challenging his Foreman's decision, therefore, it is determined that the Carrier did not meet its burden of proof.
The Board finds and holds that the discipline is rescinded and removed from the Claimant's disciplinary record and the Claim is sustained as presented. Claimant is returned to his prior disciplinary status in accordance with the Carrier's Policy for Employee Performance Accountability (PEPA). P.L.B. No. 7048
