OOn August ?5. 2011, Claimant was notified that he had been found guilty as charged and vas dismissed ti*om service.
It Ithe (Jrganization's position that the Claimant ryas disciplined and prejudged before the Investigation as he was taken out of service prior to the I-Tearing. It further suggested there may have been improper coaching in the preparation of witness Ilaley"s statement and on that basis Claimant was denied his right to a "fair and impartial" Investigation and the; claim should he sustained without even reviewing the merits. However, if the merits are examined it argued that the transcript indicates that the Operator of Ballast Regulator f Jnit. Mr. W. I faley was not certain that he notified the Claimant on the correct channel that he had stopped his machine. According to Organization the: Claimant was attentive to moving his machine while- reviewing the roadbed ballast as to whether it had been properly stabilized when last worked nn mid because he received no call from Haley the collision occurred . It further argued that the record does not conclusively prove that the "stop call" was made on channel 66 or 87 or that it was even made. It reasoned because of that the Carrier did not meet its burden of proof: It concluded by requesting that the discipline be rescinded arid the claim sustained as presented.
It is the position of the Carrier that on the date of the incident Claimant wits neat attentive to the safe operation of Track Stabilizer Machine he was operating when it collided with a Ballast Regulator causing personal injury to a co-worker and substantive damage tar the Ballast Regulator. It argued that the record indicates that the Clamant admitted in his statement and in his testimony several times that he was guilty of running his machine into the other machine operated by W. Haley. It further argued that the discipline was appropriate and it closed by asking that the discipline not be disturbed and the claim remain denied.
The Board has thoroughly reviewed the transcript arid record «f evidence and is not persuaded that the Claimant was denied his "due process" Agreement rights. It is determined that the Investigation and appeal process met the guidelines of Rule 4() the Discipline; Rule of the farmer BN Agreement.
Review of the transcript reveals that multiple witnesses including the Claimant testified that there: was no brush or obstructions that hindered the Claimant's view of the track he was traveling when the accident occurred. Rc~admaster Devine was questioned about the incident cm page 16 of the transcript as follows:
On pages 49 and 50 of the transcript W. Haley testified that he tried to call the Claimant un Channel fib and 87 to notify him that he was stopped, to no avail. On page 25 of the transcript Division Assistant fZoadmaster, Southwest. J. Papenfuhs was asked the following:
Devine testified that the Claimant told him he w:.5 distracted at the time of the accident. Haley testified that he attempted to call the Claimant can Channel fib and 87 to tell him he had stopped, without success, and Papenfhs testified that even if the radio had malfunctioned the Claimant should have been able to stop without collision if lie had been watching ahead. None of those witnesses testimony was effectively refuted. The record further reflects that the Claimant's machine was brake and stop tested and the brakes were f6und to be functioning properly. Oil page 57 of the transcript the Claimant explained why he did not see I faley's stopped machine when he stated the following:
Claimant clearly admitted that while moving his machine he was relying upon an oral command to stop and was not watching ahead. On page 61 of the transcript the Claimant was questioned as follows:
fhe record is clear 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 the Claimant had approximately 36 years of service with a good work record. however. this was his second accident involving his failure to maintain a safe braking distance in just over two vears. The incident in this, case was of a serious nature and the Board does not excuse the C'laimant's behavior, however, in this instance it finds and holds that based upon the Claimant's lung service time and the unique circumstances of the dispute the discipline was excessive and is reduced to a lengthy suspension which is progressive and corrective in nature and in accordance with the spirit of the Carrier's Policy for Fmployce Performance Accountability (PITA). Claimant will be returned to service with seniority intact, all benefits unimpaired, but with no hack pay and one level 5 Violation on his record subject to the applicable review period. Claimant is forewarned that he needs to be careful to abide by all Cacricr Rules. Safety Rules and Yolicics upon return to service. VA-B. No. ?048
