Public Law Board No. 7048, 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 participated 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 6, 2011, Claimant was notified that he had been found guilty as charged and was assessed a Level S 30-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 operated by the Claimant was fouling the track. Because of that alleged safety violation the Officers removed the work group from service and subsequently a formal Investigation was called concerning the Claimant's conduct while performing services as a Backhoe Operator.
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 the Backhoe Operator assigned to assist the section forces in the clean-up of the area. It asserted the combined crew met in the Section's work truck for a job briefing at which time the ForemanjEIC (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 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 behind parallel to the tracks. The Claimant testified on page 23 of the transcript the Foreman instructed him to swing the boom across the track to knock a pile of dirt down during which time he fouled the track for about five seconds. It her argued that the Claimant thought the Foreman had secured permission for his backhoe to foul the track and according to it he acted in good faith. 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 Claimant to swing his boom across the track and knock down a pile of dirt with the backhoe bucket the Claimant should have questioned that directive and voiced his opposition because during the job briefing
there was no discussion that the backhoe would be 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 acrd 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 he should have exercised that challenge because he knew they had not discussed his backhoe fouling the track whereas the Organization argued that the Claimant thought that the Foreman had secured permission to foul the track.
work conditions changed there should have been a job briefing. The Organization is correct that the Claimant fouled the track for a very brief time, however, that does not negate the fact that substantial evidence was 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 five years of service with an unblemished record, however, Claimant's violation was serious because working without protection can lead to catastrophic results. The Carrier's discipline was corrective in nature and the Board finds and holds that the discipline asset was in accordance with the Carrier's Policy for Employee Performance Accountability (PEPA) and it will not be rescinded because it was not arbitrary, excessive or capricious.
