VS
William R. Miller, Chairman & Neutral Member Joy E. Mendez, Carrier Member
David R. Scoville, Employee Member
STATEMENT OF CLAIM:
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 all 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.
The facts indicate that on August 18, 2014, at 9:00 a.m. Claimant was working as Foreman near Milepost 6.0, on the KCT Railway in Kansas City, Missouri. It was alleged that the Claimant released track authority before all equipment and employees were clear of the limits and because
of that allegation the Claimant was directed to attend a formal Investigation on August 25, 2014, concerning in pertinent part the following charge:
On September 24, 2014, Claimant was notified that he had been found guilty as charged and was dismissed from service.
It is the position of the Organization that the Carrier altered evidence. It asserted the Carrier entered a tape recording made between the Dispatcher and Claimant that was out of sequence and that all hesitations between the two employees were removed to make it appear that everything happened without pause. The Organization suggested that action on the part of the Carrier makes the recording suspect as to possible erasures that may have proven the Claimant's innocence. The Organization essentially argued that the Claimant was denied a "fair and impartial" Hearing and because of that the discipline should be removed without reviewing the merits.
Turning to the merits, it argued the evidence and testimony presented by the Carrier did not prove its allegations. It further argued that the record shows that two machines were involved in the incident and that only one machine was able to send a track indication, therefore, it would have been impossible for that singular machine to have been in two locations at the same time as shown by a Carrier exhibit. In its appeal letter of October 17, 2014, the Organization explained its argument in pertinent part as follows:
Simply put the Organization argued that the Dispatcher did not have any firsthand knowledge as where the machines were and only had a track indication. It asserted that Carrier witness Mr. Bunch testified there was an actual delay between real-time and when the Dispatcher would see the change on his track screen which would have explained why exhibit 17 showed the machine in both section of track, therefore, according to the Organization the Carrier had not met its burden of proof. Lastly, it argued that if the Carrier did show the Claimant was guilty, which it did not, the discipline assessed was excessive. It concluded and requested that the discipline be rescinded and the claim be sustained as presented.
It is the Carrier's position that there were no procedural problems during the handling of the Claimant's case. It requested that the case be resolved on the merits of the dispute.
Turning to the record the Carrier argued that the Claimant released his track authority before all equipment and employees were clear and the evidence presented showed that Claimant subjected employees and equipment to potential harm. It further argued that after having proven its allegations, it appropriately disciplined the Claimant. 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 will first address the Organization's procedural argument that the recordings of the conversations between the Dispatcher and the Claimant on the date of the incident entered as evidence at the Investigation were altered which may have eliminated crucial information that would have benefited the Claimant. On page 22 of the transcript Carrier witness Mr. Bunch introduced the audio recordings between the Claimant and the Dispatcher. He specifically testified in pertinent part:
The Carrier clearly explained before it introduced the taped conversations as evidence that gap periods had been eliminated, however, it stated that the tapes (individual clips) with the gaps were available. Review of the testimony reveals that the Claimant never disputed the
accuracy of the tapes nor was there any request to hear any other clips. The Board is not persuaded that the Claimant was denied his "due process" Agreement rights and it is determined the Investigation and appeal process met the guidelines of Rule 13(a) and Appendix No. 11.
The Carrier Rules were established to protect employees and employees are required to comply with the Rules to protect themselves, their co-workers and equipment. The question in this dispute is whether or not the Claimant complied with the Rules. The Carrier asserted that the Claimant held no job briefing with his subordinates prior to releasing the track authority that was protecting them and he allowed men and equipment to be exposed to potential harm on an unprotected track.
On page 57 of the transcript the Claimant testified he had a job briefing in the morning before the crew got out to the track to begin work and another radio job briefing on an unrecorded channel with his subordinates prior to releasing his Track and Time Authority 610.
On page 60 of the transcript it was established that the two machines under the direction of the Claimant could fit between 82L Signal and 687 Switch and that was not refuted. On page 62 of the transcript the Claimant was questioned as follows:
During the Investigation it was not denied that if the machines under the direction of the Claimant were between 82L Signal and the 687 Switch they would not have been outside of their limits prior to releasing the 610 Authority. Claimants testified without rebuttal that the Tamper Operator confirmed that both machines were between the 82L Signal and Switch 687 prior to Claimant's releasing of the 610 Authority. That testimony was not effectively denied at the Investigation or during the appeal process. It is determined that the Carrier did not meet its
P.LB. No. 7048
Award No. 177, Case No. 177
burden of proof, therefore, the Board finds and holds that the discipline is set aside and the Claim is sustained in accordance with Part 2 of the Claim.
The Board also exercises the option to advise the Claimant that upon his return to service he should continue to be careful to adhere to all current Carrier Rules because possible violation of some of those Rules can have disastrous consequences.
AWARD
Claim sustained in accordance with the Findings and the Carrier is directed to make the Award effective on or before 30 days following the date the Award was signed by the parties.
William R. Miller, Chairman & Neutral Member
David R. Scoville, Employee Member
