Public l.aw 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 ay amended; and that the Board has jurisdiction aver the dispute herein; and that the: parties to the dispute have participated in accordance tea the Agreement that established the Board.
On February 15, 2011, Claimant was directed to attend a formal Investigation on February 23, 2011, which ways mutually postponed until March 9. 201 1. concerning in pertinent hart the following charge;
The Board notes that this is a companion case to award No. tab, (Case No. 98) of this tribunal. <)n April h, 2010, Claimant was notified that he had been t6und guilty as charged and was assessed a 1 0-Day Record Suspension.
I'he facts indicate: that on February 7, 2()11, a derailment occurred at Clovis, New Mexico, in the Clovis Yard on the Fast End of Track 117 that resulted in the afbrementioned charges.
It is the Organization's position that the Carrier did not meet its burden of proof. It argued that the Claimant co-inspects tracks in the Clovis Yard with ~1`rack Supervisor D. Dyer. It asserted that the, Claimant testified that he anti Mr. Dyer work together and at the end of caeh month they determine what defects exist and what repairs should be made and chore importantly Mfr. Dyer inspects the east end of the yard tracks while he did the west end. The Organization reasoned that the Claimant should not have been held responsible fir the derailment because lie did not inspect the area where the derailment occurred. It further argued that a Carrier Unginecring Officer testified that lie did not believe it was a track caused derailment. It concluded the C laicrrant did nothing wrong and requested that the: discipline be rescinded and the claim sustained a5 presented.
It is the position of the: Carrier that the Claimant was assigned as a Track Supervisor and it was his responsibility to perform a thorough inspection of the tracks and he was responsible for taking the appropriate: action to either make the necessary repairs and/or steps ensuring the trains were safe. It argued that the record reflects that Track 117 was missing fasteners, spikes and plates and had poor tie conditions and was under the responsibility ul'the Claimant and because it was not properly taken care of0aimant was guilty as charged. It closed by asking that the discipline not be disturbed and the claim remain denied. t'.L.i3. No. 7048
hhe Board has thoroughly reviewed the transcript anti record cal- evidence and hits determined that the Investigation and appeal process net the guidelines of Rule l 3(a) the Discipline Rule and .Appendix No. t l and Claimant was afforded his "clue process" Agreement
I~he Organization, in part, argued that S. Sanders. l·ngineering ()Nicer testified can page 22 of the transcript he did not believe the derailment waas track caused. The Organization reasoned that showed that the Claimant was not at fault. That opinion must be tempered by the fact that Sanders testified on the previous page that most of the derailment site was cleaned Lip before he arrived on the scene. Additionally, Sanders testified on page 32 of the transcript that this was his first derailment whereas l'errninal Manager M. Bryant testified he had 2() plus years of service and had investigated at least 20 different derailments. ()n page 36 Bryant was questioned about the photographs taken at the site immediately after the derailment as follows:
Terminal Manager Bryant's testimony was next etf'ectivcly refuted that the primary cause of the derailment was the pre-existing condition of the tics and tnissins-, fasteners, tic plates and
Hie Organization's alternative argument was that the inspection ot~ the cast end of 'Track 1 17 was not the responsibility « f the Claimant, but instead was the responsibility of' his coworker l). Dyer. ()n pates S I and 5? of the transcript the: Claimant \A,as questioned as follows:
The only issue remaining is whether the discipline was appropriate. At the time of' the incident Claimant had approximately 14 years of service with a good work record. The discipline assessed against the Claimant will not be set aside as it wits in accordance with the Carrier's Policy for Employee Perfonnance Accountability (PITA) and it was not excessive, arbitrary or capricious. The claim will remain denied.
