PUBLIC LAW BOA.RO NO. 7544

Brotherhood of Maintenance of Way )

Employees Division - IBT }

Rall Conference )

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and )

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SOO Line Railroad Company (CP) J

Case No,44 Award No.44

System File No. 0-59-16·390·13

Bsickground

On May 6, 2016, the Carrier issued to Claimant T. Marsland a notice of formal investigation and hearing. The notice stated, in part, the following:

"The purpose of this investigation/hearingis to determine the facts and circumstances and to place responsibility, if any, In connection with your alleged Involvement where the Minot Welding truck struck a 3rd party vehicle along Central Ave West ln Minot, ND on Wednesday, May 4, 2016. The following rules may apply to the alleged Incident:

Engineering Safety Rule Book•E2 VQhlcles Used for Companv Business

GCOR 1.1.1Malntalnlog a Safe Course

GCOR 1.1.2 Al§rt and Attentive"

on May 11, 2016, the formal investigation and hearing convened wherein Claimant and his representative were afforded the opportunity to present testimony and other evidence as well as examine the carrier's witness and sixteen (16} exhibits.

On May 18, 2016, the Assistant ChiefTrack - Glenwood notified Claimant that the record of the investigation and hearing established Claimant's violation of the charged rules as well as GCOR 1.6 - Conduct and GCOR 1.19 - Care of Property. Based on the rules violations, severity of the incident and Claimant's past disciplinary record, Cf> assessed Claimant a ten (10) workday suspension {eighty (80) hours).

On July 11, 2016, the Organization and the carrier agreed to progress Claimant's discipline dispute for resolution before this Board using the abbreviated procedure provided for In Paragraph (K) of the PLB Agreement.

Findings

Public Law Board No. 7544, upon the whole record and all the evidence, finds that the parties herein are Carrier and Employes within the meaning of the Railway Labor Act, as amended; that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing and did participate therein.

Conslstent with the PLB Agreement for this Board, the evldentiary record in this proceeding is comprised of the following: (A) notice of investigation, (B) transcript of investigation and allrelated exhibits, (C) discipline assessment letter and (D} on-property correspondence related to progression of the claim.

At the outset of the hearing, the Organization objected to the Carrier's recordatlon of the proceeding with the transcriptionist off-site, at a remote location, as this can result In an Inaccurate and Incomplete record. The Organization requested that the transcrlptlonlst be physically present to record the proceedings. The Board finds the transcript of the proceeding complete and accurate which Is sufficient forthls tribunal's use in rendering a decision.

The BMWE also objected to CP's withholding Claimant from service without identifying a reason and prior to conducting fair and Impartial hearing. Claimant was not Impaired as shown by his passing a post· incident breathalyzer test. By withholding Claimant prior to a fair and Impartial hearing, the Carrier already has determined the outcome and Claimant's culpability. Claimant has been denied due process; the Organization requested termination of the proceedings and Claimant's Immediate reinstatement with back pay other emoluments. The Carrier denied the Organization's request. In the circumstances of this proceeding, the Board finds that CP acted In accordance with the collectlve bargaining agreement.

Claimant was not denied due process and received a fair and Impartial hearing.

On May 4, 2016, Claimant was a passenger in a CP truck driven by a co-worker. The co•worker driver maneuvered a reverse movement ln an alley and struck a thlrd•party vehicle parked on the street. Claimant's written statement and testimony confirm the accidentj the co-worker driver reeelved a ticket for this accident from local law enforcement. Claimant did not exit the truck to provide flag assistance prior to the reverse movement as required by the rules, e.g., when two (2) or more persons arein a Carrier vehicle, one (1) must be outside of the truck assisting the driver when the vehicle Is making a reverse movement. Claimant acknowledges knowing the rule, he is rules qualified. Claimant, as a passenger in a CP vehicle, has exited the vehicle In the past to assist the driver witha reverse movement but claimant failed to do so in this situation.

The Board finds there is substantial evidence to support the Carder's position that Claimant violated GCOR 1.1.1- Maintaining a Safe Course, GCOR 1.1.2 -Alert and Attentive, GCOR 1.6 -conduct, GCOR

1.19 - Care of Property and Engineering Safety Rule Book E 2, Vehicles Used for Company Business. Since there Is substantial evidence of Claimant's rules violations, the Board finds that the carrier's assessment of discipline Isnot arbitrary or an abuse of discretion. Thus, the claim isdenied. In rendering this decision, the Board considered all arguments and evidence presented by the Organization In Claimant's defense.

Claim denied.

Patrick Halter

Neutral Member

'AnthonyMosso

Carrier Member

Dated on this2 14 day

o B

Organization Member