PUBl.JC LAW BOARD. NO.7544
Brotherhoc,d ofMaintenance of Way )
Employees Dfvlslon- lBT )
Rall Conference )
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and )
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SOO UneRailroad Company (CP) t
CaaeNo..61
AwardNo.61
Qackground
On December 2, ?016, thecarnet Issued to ChUmant R. Heald a notice of formal investigation and hearing. The notice stated, In pa the fol!Qwlns;
"The purpose of the Investigation/hearing Is to determine the facts and circumstances and to plcace responsibility, If any, tn connectfon with your alfeged Involvement with a loader incident In Winona, MN which resulted In damage to a 3"'.party vehicle ort November 2a11t, 2016. l'hls lndlcateJ a possible vloratlon of, but 11 not limited to, the following rules:
GCQR 1.0-General Resaonslbllltly
GCOR1.2-Personal1n1ur1e, andkdd@nts
§COB 1.20 -Alentoindn Movement
ES Rule E:OJobsafety Brleffmr
ES Rule E·U• Material and Personn,t Handllna Eaulament'!
On December 13,2016, the Investigation/hearingcoovenec:fwherern Clalmantand. his representative presented testimony and otherevJdence and examined the carrier's two(2J witnesses and nine (9) exhibits.,
On December 27. 2016, the Director Engineering Works Issued a decision letterstating that the record of the proceeding established Claimant's rulesviolstlons as charged. Based on theevldentlary record severity of the Incident, and Claimant's dlsclplfnary history, CP assessed Claimant a ten(10) day susl)lfflSfon without pay (timeserved).
OnJanuary 17, 2017, the Organization and the Carrier asreed ta progress Claimant's dlsdpllne dispute for resolution before this Board usingthe abbreviated procedure provided for In Paragraph (K}of the PLB Agreement ·
PLBNo. 7544
CaseNo.61
AwardNo.61
Flndlng1
Public Law Board No. 7544, upon thewhole record and all theevidence, finds that the parties herein are Carrfer and Emploves within the meaning of the Railway Labor Act, asamended th1t the Board has Jurlsdlttfon over the dispute herein; and th,t the partiesto the disputeweregiven due notice of the
hearinganddidpartfclpate therein
Constst:ent withthe PL& Asreement forthis Board, theevldentlary recordin this proceedlns lscximprlse6 of thefollowlna:{A) notice ot Investigation, (B) transc:ript of Investigation and aH related exhibits, (C) discipline &$$essment letter and (D) on-proparty correspondence related to progression of the cla.lm.
At theoutset of the hearing, the BMWE obtected to CP's wlthholdlna Qalmant fromservice, without a reason prior tothe hearing. Wlthholdln1Qalmant frontservk:e shows a predetermined outcome byCP and denies dueprocess to, Oalmant.ihe Soard finds that Rule 20 allows CP to withhold an employee frQOl servlce prtorto a hearlns for serious rules lnfractfons. CP acted pursuant tothe rule. The aoard flnda Claimant reatlved a fairand fmpartral hearln
ctalmant ha O'ler five (5) years of servfce wtth CP fl\ various positrons, OnNO mber 28, 2016.Claimant
wa theforeman ln·c:hargewith an assignment tor ovea crossover and cut its tratk panels·lnto tWo
(2) lengths, seventv (70) feet;Iona and fourteen(14) feet wide. Cfatmant conducted a Job briefing wherein there was discussion to backthefront,endloaderdown the hilt to keep thewelon the rear for loader stability when transporting,the paneltothe flatbed tralfer rather thandrMngthe IOader forward. Obstaclesand hazards were Identified such as the third-party pickup truck parked In the private rot.nea( the location where the panelswould be loaded onto the trailer. The forklift loader/operator was lnsin..cted not to attempt tel11ft a part loverthe topof the pickup truck. Theloader/operator stated he wouldnot attempt such a lift, he Indicated that e>l>talnfna another front.end loader from a workslte app{c,xlmatelyflft n (15) miles away would enable them to. tum the 70-foot panel lengthwise and havethe tWO front-end loaders transport It down the hill away'fromohltructtons and onto the trailer In the parklns lot.
The flatbed trailer for the panels could nothandle the 70.foot Ion&14-foot wide panels. Panels were cut tosmalfer dlmensfons; the.second forklift arrMn1at the workslte would'not e used.In tandem to carry the panels lensthwlse. lr,stead,. theloader/operator transported the first panel r the main andyard traclt, driving the forkllft forward down the hilt, and llftlna tha panel , the parked pickup truck am!
onto thetrailer. Claimant was at thetearofthe section wck preparing his tools far cutting and
torc:hlna track panels; hewas not present tosupervlise the loader/operator plcldni up the first panel with thefront-end loader and drMng It forward, not backward or In reverse, down the hilt. Having successfully completed loadlng a panel while drJvln1theloader forward. the loader/operator repeated hisac:tlonswhen he picked upa second panel, approximately fl(ty (SO) feet In length, and proceeded to drive theforklift forward downthe hill whereupon the panel shifted to therlaht. To maintain balance, the loader/operatorshifted.the front-end loadertothe left. Notwlthstandlngthe effort to balance the forklift carrytng the panel, the rear of the loader lifted off the around rendering the panel unstable whereupon the panel fell from theliftand crushed thetopofthethird-party p!ckup truck.
PLBNo•.7544
Cas&No.61
AwardNo.61
Claimant, as foreman hi charge, is responsible for the safe performance of work, that ls, no Injury to employeesai:td no property damage. Claimant wasthe supervisor of thttloader/operator, but Claimant was not readily presentto supervise the loader/operatorwhen he lifted thepanel over the parked pickup truck. Claimant did not PG$1tlon himself with1/fsibUlty of the loader/operator toensure l,e was performing tasksln ac::cordance with thejob briefing Instructions. Claimant's Job responslblllty was to supervise thecrew and ensuretheyfoHowedj(lb brlefl111 Instructions. The record shows thisdid not occur Inthecircumstances of this proceedlog.
There Is substantial evidence,in support of the rules vlolatlon$. The Carrier's etlslon to assess dlsclpftne
to Claimant was not arbitrary oran abuse f discretion. The claim wlll bedenied. In rendering this
decision, the Board considered all arguments and evidence presented by the Organfzatlon and Claimant
ctalm denied.
Carrier Member
Dated is 5-/4· day
of .20,!l
Patrick Halter
Neutral Member
'
Ryan Hlda.lgo
Organization Member