PUBUCLAW BOARD NO. 7544
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Background
On October.18, 2016, the Carrier Issued to Claimant B. Plersol a notice of formal tnvestlgatlon and hearing. The notice stated, fnpart, the followfngt ·
"The purpose ofthis Investigation Isto determine the facts andcircumstances and to place responslblllty, If any, In connection with your alleged failure to have dally
inspection sfgned off for October 13111, 2016; Inthedally Jnspectfon Book tor the work
equipment you were operating that day (Yellow Sook}, This Indicates a possible
violation of, but Is not limitedto, thefollowing rules:
> QTS 23,2- Use oton-Track Equipment
> GCOR 1.1.4 • Cgndltton of Equlpment and Tools"
On October 31, 2016, the Investigation and hearing convened wherein Claimant and his representative
were afforded the opportunity to present testimony and other evidence and examine the Carrier's two
(2) witnesses and four (4) exhibits
On November 14, 2016, the Assistant Chief Track,· Glenwood Issued a fetter to Claimant stating that the record of the proceeding established Oalmant's vlolatfonofthe rules ascharged. Based onthe evldentla,y record, severity of the Incident, and Claimant's past disciplinary history, CP dismissed Claimant from service effectlve Immediately.
On December 20, 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. 7S44, uponthewhole record and all the evidence, findsthat the parties herein are Carrier and Employes within themeaning 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 didparticipate therein, ·
Pl&No. 7544
Case No. 78
Award No. 78
Consistent with the PLB Agreement for this Board, the evldentlary record In this proceeding Is comprised of the following: (A) notice of Investigation, (BJ transcript of Investigation and all related exhibits, (C) dlsdpllne assessment letter and (D) on-property mrrespondence related to progression of theclaim;
At the outset of the hearing. the Oraanlzatlon objected to the Carrier's recordatlon of the proceedfn1 with the transcrlptlonlst located at an off-site, remote location. Experience shows, BMWE states. this method of transcrfptlon can result In an Inaccurate and Incomplete record. The Organlzatfon requested that the transcrlptlonlst be physically present to record the proceedings. The Board finds thetranscript of the proceeding complete and accurate whfch Is sufficient for this trtbunaYs use fn rendering a decision.
The BMWE also objectstoCP's withholding Oalmant fromservice - - beginning October 13, 2016- - without a reason and prior te1a hearfns wherein Claimant could refute the allegations. Although Rule 20 allows CP to withhold Oalmant from service for aserious rules Infraction, this allegatlon of failure to slsn a dallv Inspection logdoes not constitute aserious infraction because, under Industry standards, serious Infractions are those that result In a derailment, damase to equipment or personal Injury. Wlthholdfng Claimant from service shows a predetermined o_utcome by CP; Oalmant has been denied due process and Immediate reinstatement ts requested. Applylng Industry standards,, the Board finds thatthe alleged rules Infraction Is minor. Nevertheless, Claimant received. a fair and lrnpartlal hearing.
On October 13, 2016, the Carrier conducted a safety blitz with a.focusto ensure compliance with th• rules. Clafman a machine operator with approxlmatelyslx(6} years of service, was part of a three (3) person surfacing crew with a tamper and resulato,. Claimant operated thetamper on October 12 and October 13, The Senior Manager ofTrack reviewed the yellow book Inspection record for the tamper; Claimant Inspected the tamper on October 13 but mfstakenly recorded It asoccurring on October12. The Manager concluded Claimant did not perform an Inspection on October 12 otherwise that line In the record book designated for October 12 would not have been open for reporting the Inspection of October 13. Employees have been Instructed to Inspect equlpmentatthe beginning of the.shift; Accordfng to the carrier, Claimant's not Inspecting the tamper on October U violates GCOR 1.1.4, condition of Equipment and Tools (employees requfred to check the condltfon of equipment used In their work) and OTS 23.2, Use of On-Track Equipment (employees required. to Inspect equipment prior to use),
The Board finds that Clafmant Inspected the tamper on.October 13 but recorded It as October 12. Oalmant operated the tamper on October 12. The notice of Investigation and hearing stipulate, however, October 13 ls thedate of the "alle,ed failure to have dally Inspection." This ls not a typographlcal error astheSenior Manager was aware from his conversation with Claimant on October 1l that the tamper had been Inspected on that date. Without disregarding thesafety value for requiring dally Inspections of equipment, the charged allegation specifies October 13, not October 12. In the circumstances of this proceeding, the Board finds theCarrier's decision to withhold Claimant from servtce for, under Industry standards, a minor Infraction and dismissal of Oalmantfrom employment constitute harsh and punitive dlsdpllne and an abuse of discretion. The Board findsthe appropriate level of dlscfpllne for the proven Infraction Is a twenty{20) day on the record suspension.
Pl8No. 7544
case No. 78
Award No. 78
Claim sustained In accordance with the flndlngs,
Patrick Halter
Neutral Member
Carrier Member
Datedonthis.i:'!!.day
of $tn. , , 20,ll
Ryan Hldalgo
Organization Member