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 Lahor Act as muended; 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.
0n February 15. ?011, Claimant was directed to attend a normal Investigation can February 23, 21711. which ryas mutually postponed until March 9. 201 1, concerning in pertinent part the following charge:
On April 6, 2010, Claimant was notified that he had been found guilty as charged and was assessed a I O-Day Record Suspension.
The Board notes that this is a companion case to Award No. 92, (Case No.92) of` this tribunal. The facts indicate that on February 7, ?011. a derailment occurred at Clovis, New ;Mexico. in the Clovis Yard on the Fast End of Crack 117 that resulted in the aforementioned 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 Track Supervisor T. L. Widner. It asserted that the Claimant testified that he and Mr. Widner work together and at the end of* each month they determine what defects exist and what repairs should lx: made. It argued that the derailment occurred on one of the most heavily used tracks in the Yard wherein thousands of tons of traffic move over the track daily and that combined with the roadbed being wet from snow and ice was the cause of the derailment. It concluded the Claimant did nothing wrong and requested that the: discipline be rescinded and the claim sustained as presented.
It is the position of the Carrier that the Claimant was assigned as Track Supervisor and it was his responsibility to perforttl 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 sate. It argued that the record reflects that Track 1 17 was missing fasteners, spikes and plates and had poor tip: conditions and was under the responsibility of the Claimant and because it was not properly taken care of Claimant was guilty tts charged. 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 I 3(a) the P.L.B. No. ?048
The arguments by the parties are nearly identical to those raised in Award No. 92 and the transcripts of both Investigations are very similar. F`or the sake of brevity those arguments will not be reiterated, however. the. reasoning that was applied in that case, is equally applicable in this instance as well. In both cases Terminal Manager Bryant testified that the primarv cause of the derailment was the: pre-existing condition of the tics and missing fasteners. tic plates and spikes. Bryant's testimony wits not effectively refuted. Additionally, the record is clear that the Claimant was the last employee to check the cast end of 'track 1 17 prior to the derailment. Substantial evidence was adduced at the Investigation that the Claimant had a dual responsibility t«r the inspection and upkeep of track 1 17 and 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 prior dismissal reduced to an ,actual 120 day suspension on his record. The discipline: assessed against the Claimant will not he set aside as it was in accordance with the Carrier"s Policy f<sr Employee Performance Accountability (PEPA) and it was not excessive, arbitrary or capricious. The claim will remain denied.
