William R. Miller, Chairman & Neutral Member Michelle McBride, Carrier Member
Jeffery L. Fry, 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 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 Claimant was a Machine Operator on July 28, 2021, operating a Grapple Truck as a member of RP04 at MP 22.5 on the Beardstown Subdivision. It is alleged that on that date at approximately 0750 Claimant moved the Grapple Loader with a suspended load attached above the head of one of the Tie Epoxy Operators and because of that Claimant was directed to
attend a formal Investigation on August 12, 2021, which was mutually postponed until September 8, 2021, concerning in pertinent part the following:
On October 6, 2021, Claimant was notified that he had been found guilty as charged and was assessed a Level S 30 Day Record Suspension with a One Year Review Period.
It is the Organization’s position that Claimant was denied a “fair and impartial” Investigation because the Hearing Officer allowed the Carrier’s Charging Officer to question a witness attending on behalf of the Claimant and because of that it requested the discipline be set aside without reviewing the merits.
Turning to the merits, the Organization asserted Claimant never placed his co-workers in “harms way” and the testimony and written statements of those employees confirmed they were never in danger. It further argued Carrier Officer A. Adams vantage point of the alleged incident was approximately 250 to 300 feet away and was hampered by Carrier equipment and some overgrown vegetation. It concluded Carrier did not meet its burden of proof and it requested the discipline be rescinded and the claim be sustained as presented.
It is the position of the Carrier the Investigation was held in a fair manner and there were no procedural errors and it asked that the claim be resolved on its merits.
Turning to the record it asserted that record shows that Claimant placed employee, Mr. Rush, in a dangerous position swinging a heavy load over Mr. Rush. It argued that Roadmaster Adams testified that he witnessed the event and there were no alleged obstructions that might have obstructed his view. It reasoned that after proving Claimant’s guilt it appropriately disciplined Claimant. It asked that the discipline not be disturbed and the claim remain denied.
The Board has reviewed the transcript and record of evidence and will first address the Organization’s procedural argument that the Hearing Officer allowed the Charging Officer and witness for the Carrier to question an employee witness. Hearing Officer’s allowance of such behavior was irregular and is frowned upon as it could lead to abuse, but in this instance, it did not rise to that level, therefore, the case will be resolved on its merits.
Review of the Transcript reveals that on Page 9, Roadmaster Adams testified that after the alleged incident he did not talk to Operators Rush or Kane, that were working with the Claimant. Mr. Adams further testified on Page 13, that he did not see a load over Mr. Rush’s head. On Pages
P.L.B. ND. 7048
AW!I& ND. 386, C!K' ND. 386 P"1(3
and oď t`e ÏransVr$pt "iN ¥dams Įnahprohrįateő' aCƑeŶŢaƒeë (etween (ñİŚ^ a ƴiƓśess and aâpın@ #& a ìvaŒ ¸eaūIJn_ ÈĜVZr Ū òſƔijoŜĴŝĢ Òbq5ZƀƁ ¼Ô5óO ¦íÕŗ ƕ[ƂƖbĝ[î pa#t ĵq #EEô#Fõï ƗaÖƘ ²mũloƶeö 9ƪsh was dartBn3 awaƷ Ěžom daD3eo oĐ à owerhead load and then !68 §dams asŐed ³mpCo'÷e ½ane whaƙ ī< o:seryød8 !r Qane anJw1red :Ƹ statin3 thUu he dĶd nor ƃee !r 9ƫsh dait$n^ nor d$d h0 Je? a load oưer Rr S sh "rO ¾Un2Ms answeŬ waƄ ãonƅistent wķth his pŭeƱco s teƆƚimon' on Éaģes ¡ whereĸn ¿aťe star<d he and otheGƇ weje not in dTDĤ=o8 ¨ddAtionaŖl' a wrĹttùn st×7ement ğ¤om ´mplozee Ê sh was introd äed dƬrdŞ@ th> ¹úØkĺ5@ "FN Ëvƈh wnotû a r)YolCüåt*on ođ ƛh= inæAdent and stat=d the ĘŧllowĻnĥ¢
W7.I' BDM ?D!&/& DV*I7.!& !M !B[:A)." Ñnderlinin3 Poald|s emphasļs
,l?ÙHlƹ Rŷ S sh /oşĞrmed ®4aĽmanƜ Üţd "Ž Àan>Ɖ} Ɲ>ƊtľŘonƺ KhÝƨ ƞĬ1 œoad wa& noK oƲ1r ÆŸ Ì+Ƌh~s head ßDd no one Ŀn Ɵhe ;6ýw was in dTŤĦer !G Íƭsh and !Ů Qáes wantaħe poŀnK oĒƠĭþ ÿƳĀ5ơ Ƶ#ƌ &ƮEāFdoů 7o Ƣhat oē "Ű ©dam& aŠd 7`0ű0 ha& .Ă?n no &howinĨ thÚs e$theŲ Łndix*d aŔ had anƻ H1ason not to mÞfe an aWWƯŹate report o] the łn;Ńd2nt ºt ńs d)teźřinăd ,aųŻ%e6 dŅd nŦt me<t iƣs .+rden o] prooĔ
Ðhe Poard ėŏndƍ and ho4ds thaƤ thĄ dBƎ/epŕ*ną assessed -la%manƥ ņn thŇs instan;Ć eJ to (ć l)moyed ġom ¯laimantMs °ňsXōpg*namL ÎeXomd and the ,laim is s+stained
AWARD
-4a%m s+ssa%ned in açèordan/e wcth Ʀhe ¶ind*n_s and the ,ÛƩʼn)r %Ə d$ż\éted to mafe thĈ ªw#rð ĉĕĖĊêtŊxċ oš ok (ČęŨHe da's Ġ4lowinĩ 7he date Ƨhč «wand was sAĪned (' the pajuŋeƐ
Óill%am 9 Âigler -ha$rman { Çe+tGal "em:e6
ÃŌYh0lle !/rBd2 -arrŎ2I Ä)m.er
¬waŴd ±ate£ April 10, 2023
»eěĎIL Á ·Iz µmploLee Å\m.eŵ