PART :s
TO Tf I DISPUTE
VS.
PUBLIC LAW BOARD NO. 7529
Case No. 163
Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters
CSX Transportation, Inc. Carrier File: 2017-220603
Referee: Sherwood Malamud
[he Board, upon the whole record and on the evidence, finds that the parties herein are Carrie· md Employee within the meaning of the Railway Labor Act, as amended; that this Board is duly :onstituted by agreement of the parties; that the Board has jurisdiction over the dispute, and th the parties were given due notice of the hearing.
3y a request form dated April 24, 2017, Claimant, Track Inspector W. L. Marshall asked that th disciplinary matter be processed by Public Law Board 7529 (Special Board of
Adjus1 1ent) for expedited handling.
fhe Carrier hired Claimant W. L. Marshall on March 2, 2015. By letter dated January 31, 2017 1 ;sistant Division Engineer (ADE) A.M. Kurec directed Claimant to report to an
invest atory hearing which was held on March 28, 2017 concerning an incident that occurred at 11121 1urs on January 26, 2017. ADE Kurec charged that Claimant "failed to protect trains and on trai . equipment against any known conditions that would interfere with safe operations... " in the icinity of the Dewitt Yard. The Carrier offered, but Claimant rejected, the opportunity to waive 1e investigation and agree to the assessment of a formal reprimand for this incident.
Claimant was the last Track Inspector to inspect a segment of track known as the South Van "i rd #7 switch in the Dewitt yard on December 27, 2016. On January 26, 2017 there was a derailJ ent at this location. After investigation, the TAPS committee comprised of
repres 1tatives of the Carrier's transportation Mechanical and Engineering departments agreed on the ;ause of the derailment, wide gauge due to defective or missing fasteners. In a different accid t report, Exhibit G, the cause of the derailment is noted as wide gauge due to missing crosst s.
In his inspection report on 12/27/16, Claimant noted insufficient fasteners at #7 switch.
On Ja iary 10, 2017, Roadmaster Bourgeois informed Claimant that the defect had been
repair L On January 10, 2017 Claimant inspected the repair made and removed his notation that it was . FRA 213.9(b) defect. The repair lasted 16 days; the repair is supposed to be made to a
standar that the repair would last at least 30 days. Although the derailment occurred on January 26, 201 , the Track Inspection Report of December 27, 2016 was closed out on the Carrier's ITIS sy :em on January 25, 2017.
'rack Foreman Garrett, who was shadowing Claimant to become a track inspector placed in evid ice a statement. In it, he noted that on the date of the initial inspection, December 27, 2016, t location involved in the derailment was inspected not only by Claimant and Garrett, but by DOT Inspector Wymans and Assistant Roadmaster Eyerly. Weather conditions of
:freezrn and thawing occurred during the months of December 2016 and January 2017 prior to the der .lment on January 26, 2017.
ly letter dated April 17, 2017, Division Engineer J. E. Brass, upon his review of the record tssessed a 3-day actual suspension for Claimant's violation of Operating Rules 100.l and Rule 1 5.1 part 2 with regard to his alleged failure to sufficiently protect the track that led to a derailr !nt on January 26, 2017.
ule 105- Reporting Conditions
Protect trains and on-track equipment against any known condition that may interfere with safe operations. Immediately report the following conditions to the proper authority:
Accidents;
Defects in track, bridge, signal, or highway-rail crossing warning devices;
5. Any condition that may affect safe and efficient operations.
Boarc Findin s
Procedural Objections
At the on property hearing, the Organization objected to the Carrier's failure to include in the Ja ary 31, 2017 notification letter the specific rule(s) allegedly violated by Claimant. This Boarc letermined in Awards 106 (MacDougall) and 114 (Malamud); NRAB Third Division Awar No. 35022, BMWE v. BNSF (Kenis) that it was not necessary to specify the Rules
alleg€: ly violated. Under Rule 25, the Carrier had to provide sufficient information to alert Clain nt of the conduct that is the subject of the investigation. The Carrier did so in the January 31, 2( 7 notification letter. After reviewing the entire record, the Board concludes that Claimant recen d a fair hearing.
Prior to the hearing, the Organization wrote to the Carrier and requested copies of the exhib s the Carrier would introduce into the record and the names of the witnesses who would testif At the hearing, the Hearing Officer denied the Organization's objections to the
intro, 1Ction of exhibits offered into evidence. The Hearing Officer noted that neither the Agm nent nor Rule 25 provide for pre-hearing discovery. However, the Hearing Officer prov1 !d the Organization with copies of the exhibits and afforded the Organization sufficient
time to xamine the documents introduced. The Board concludes that Claimant was afforded a fair he, lng.
' he Merits
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n his letter assessing discipline, Division Engineer Brass references Rule 100.1 that was duced into the record at the hearing. Since the Carrier does not list the Rules that
tis alleged to have violated in its notification letter, the Board concludes that finding
t violated a rule not placed in evidence at the on property hearing deprives Claimant and nization of the opportunity to defend against that charge. Reference to Rule 100.1 as
1e decision violates Rule 25.
)ivision Engineer Brass concludes Claimant violated Rule 105.1 part 2. What did
.t fail to do? He reported the #7 track defect to the proper authority. During his
m of this segment of track on December 27, 2016, Claimant identified this track with a defect and inputted it in the Carrier's ITIS system. When Roadmaster Bourgeois
j Claimant that the defect had been repaired, he inspected it. He found it conformed to ier's standards and requirements for this Class 1 track, and he removed the 213.9(b)
·om ITIS.
[here was a derailment at the #7 location 16 days after Claimant inspected the track. The
,d not last 30-days. The Carrier asserts it is Claimant's fault. He was the last person to tt. The Carrier asks this Board to infer a deficiency in the inspection Claimant made, lerailment occurred 16 days after Claimant inspected the repair made to the track.
fhe Carrier bears the burden of proof in a discipline case. It must establish by substantial e that Claimant violated the Carrier's rule(s). In unrebutted testimony, supported by the 1y of Track Foreman Garrett, who shadowed Claimant when he inspected the repaired laimant conducted the inspection. When he inspected the track on January 10, Claimant conformed to Carrier standards. This testimony is unrebutted, as well.
Claimant did not make the repair. He inspected it. The Carrier failed to establish that
1t failed to take any required action or that he conducted himself in a manner proscribed
. The mere fact that the repair he inspected did not last for 30-days does not establish by tial evidence that Claimant failed to comply with Rule 105.1 part 2.
AWARD
: laim sustained.
Sherw )d Malamud Neutn Mymber
Date: 2/ 7 0
