Public l.aw Board No. 7048, upon the whole record and all the evidence. finds and holds that F.mployce :inci Carrier are employee and carrier within the meaning of the lZailway 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.
(3n March 24. 201 1, C.'lairnant was directed to attend a formal Investigation on March 10. ?QI1. which was mutually postponed until April 2(). 2011, concerning in pertinent part the following charge:
On May 2t), 7011. Claimant was notified that fie had fxen fi>und guilty as charged and u as assessed a Level S 3t)-f )av Record Suspension with a one year probationary period.
The facts indicate that on March 17, 2011, there was a tie plutger that was broken down. The Foreman and the Mechanics on the gang had tile broken machine brought out of the: ht>le or tie up location and moved with the gang out to the work site. At the work site they were going to make repairs and put it back in service, but they were not successful in fixing the: machine and because ofthat it was necessary to tow the machine back to the tic up location and while towing that machine there was an accident wherein the tic plugger was damaged.
It is tile Orgamration's position that the Carrier did not meet its burden of proof`. It argued that the Claimant did as instructed. According to it the Foreman personally hooked the C'laimant's machine to the broken machine with a chain under the Mechanic's supervision and instrtIction. Claimant was directed to pull the broken machine with another machine pushing and providing braking for the broken machine. It was a line of three machines hooked together. one pulling, one pushing and one broken in the middle with the trailing machine being the final brake. It asserted that the last machine did not have enough braking power to stop the broken machine completely causing the middle machine to make contact with the lead machine. It concluded the Claimant did nothing wrong and it further pointed out that several other people were involved with the incident and no one other than the Claimant was charged with working unsafely. It concluded by requesting that the discipline be rescinded and the: claim sustained as presented.
It is the position of the: Carrier that the C'laimant's machine was equipped with a tow bar and fie chose not to use it. It argued that ultimately it is the Machine Operator's responsibility to safely operate the machine he is running in such a manner that it does not cause alt accident and because he decided to use a chain to pull the broken machine rather than the tow bar he was responsible for the resulting accident. 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 has determined that the Investigation and appeal process met the guidelines of' Rule l3(a) the Discipline Rule and Appendix No. I I and Claimant was afforded his "(file process" Agreement rights.
File Carrier is correct that Rule ?14.SLS states that when machines are used f«r towing purposes they will fee equipped with "...a towing bar or other coupling device that provides a safe and secure attachment." Claimant's machine, the: Speed `;wing, had a tow bar can the Opposite end ofthe rnachinc from the broken machine, but Claimant testified on pages 14 - 17 crf P.L.13. No. 7048
the transcript there was no place nearby to set off the track, turn the machine around and then i-!ct back on the track and that the foreman (Claimant's superior) after a discussion with tile ;Mechanic decided to use the chant for towing purposes and actually hooked it up himself.
Clang Roadmaster W. Kok testified on page 9 of' the transcript the Foreman made the decision to have the tie, plugger towed in. <)n page 10 he further testified that he was not certain as to who decided to have the, Claimfutt's machine use a chain fir towing purposes rather than a towing bar.
The Board has examined the testimony of' the two aforementioned individuals. Claimant who was at the site of the incident testified that the Foreman decided to use the chain. That testimony was not refitted. hhe testimony of Mr. Kok. who did not witness the event. was speculative as to what transpired. Kok stated that he did not think the Foremrui made the decision to use the chain, but he was not certain. In this instance the testimony of the Foreman would have been helpful, but without it the un-refitted testimony of the (ylaintant must be considered as factual. The Board will not debate tile safety of' tc>wing with a chain versus a towinu bar as that decision was made by the Foreman, nor are we persuaded that the Claimant should have attempted to override that decision. Claimant followed what appeared to be a reasonable and safe instruction, theref{tre* the Board finds and holds that the discipline is set aside and the claim is sustained in accordance with part 2 of' the Statement of' Claim and the Claimant's disciplinary status reverts to that lie held prior to May 20. 2011. in accordance with the Carrier's Policy for Employee Performance Accountability (PEPA).
