Public law Board No. 7048, upon the whole record and all the evidence. finds and holds that Employee anti Carrier are employee and carrier within the meaning of the Railway Labor tact as amended; and that the Board has jurisdiction over the dispute herein; anti that the parties to the dispute have participated in accordance to the Agreement that established the Board.
On March ?=1, ?011. Claimant was directed to attend a formal Investigation on March 10, ?011, which was mutually postponed until April 20, ?Q11, concerning in pertinent part the 1{allowing charge:
On May 'fit), 2011, Claimant was notified that he had been I'Mund guilty as charged and :was assessed a 30-Day Record Suspension with a one year probationary period.
It is the Organization's position that on March 16, 2()11, the Claimant properly inspected the production Spiker Machine that he operated at the beginning of his workday to make sure that all locking devices were secure before he traveled with that machine to the work site, I he machine in question ha.- four "guns" or separate pieces of machinery that can drive spikes on both or separate rails on each side of track and on March 16th the Claimant only used one side: of the machine all day. According to the Organization, during the clay other employees came on the machine and sat on the other side, but did not use the guns, nor unlock them as far as the Claimant knew. It asserted that before he tied up the equipment to travel. lie secured the side he had used and inspected the side he had not and noticed nothing out of place. It reasoned that some time during the clay someone had inadvertently unlocked the other work head and only moved it back up against the locking device making it appear as the work head was still locked in place, as it was originally when inspected, or there was an electrical short in the machine that caused the work head to become unlocked and dropped below. but against the safety lock pin. It Concluded the actions of either an electrical malfunction or another person caused the work head to drop with no fault of the Claimant and the discipline should be rescinded and the claim sustained as presented-
It is the position of the Carrier that ClaunEunt admitted he was operating the Production Spiker Machine when it hit the crossing damaging the machine and it was his responsibility for preparing the machine to travel, therefore, it reasoned the Claimant affirmatively established that the accident was Iris fhult. It further arg=ued that the discipline exercised was reasonable and 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 40 the Discipline Rule of the former 13N Agreement and Claimant was afforded his "due process" Agreement rights.
The Claimant testified that in the morning before he started to travel to the work site he made a thorough inspection of the machine that included making sure that both sides of the machine and all locking devices were secure. On pages 24 and 2S of the transcript the Claimant testified that it was a fairlv common occurrence for the other side of the machine to be activated during a workday because other employees bumped into the starting mechanism. lie testified that it was not unusual for it to happen eight or nine times a day. On page ?6 of the transcript the Claimant explained how lie thought the accident occurred as follows:
1`hc record was not refuted that the Production Spiker Machine operated by the Claimant On March 16, 2011, had one side <>f the machine that had not been used for the prior two days, however. on the morning of March 16th the Claimant hclicvcd it was prudent to thoroughly inspect both :ides of the machine to ensure that it could be sately moved. At the close «f work oil March 16 he made a careful and thorough inspection of that side of the machine he used, but the other side was only given a cursory review. Claimant should have made a careful inspection of both :ides of the machine especially in view of the fact that he knew that it was common for the side of the machine not being used to be activated during the day. `substantial evidence was .Idduced at the Investigation that the Claimant's afternoon inspection of the machine on the date of the accident was lacking and he was guilty as charged.
The only issue remaining is whether the discipline was appropriate. At the time of the incident Claimant had approximately 31 years of service with a good work record. The discipline assessed against the Claimant will not he set aside as it was in accordance with the Carrier':; Policy for Fmployee Performance Accountability (PlPA) and it was not excessive. arbitrary or capricious. The claim will remain denied.