PUBUC LAW BOARD NO. 7544
Brotherhood of Malnt-,,ance of Way. )
Rall Conference )
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soo Line Railroad Campany (CP) l
CaseNo,79
AwardNo...79
Background.
On December 1,2016, theCarrier Issued to Clalmant R. Smithson anotfce of formaJInvestigation and
hearing, The notlce stated,In part, the fol!Qwlng:
"'The purpose of the lnvesttgatlan/h rlngb to determine thefacts andclrcumstarites and to place responslbllltY,If any, ln connection withyour alleged lmtolvernent Witha loader fndden In Winona, MNwhich resulted Indamage to:a,,. party vehicle on
November 28, 201 .This Indicates a pgssible violation of, but I$ not limited to, the
folfowln& rules:
u
u
GCOR 1.0.. General Rgponsll)llltf91 GCQB1.z•Personal 1n1ur1e1 anctAccldents GCQR 1,20-Alert toTrain Movement
Rufe E-0Job Safety Bdeflm.
ESBUii §·17• Mater1a1·and personnel·Handling Egylament"
onOet:etmber 13,2016, the Investigation/hearingconvened wherein Claimant and his representative presented testimony andother evidence and examined thecarrier's two (2) witnesses andnine (9) exhibit9.
On December 27, 20:16., the Director Engineerlhg Works Issued a decision letter stating that the record of the proceedtns established Claimant's rules violations ascharged. Based on the evidentfary record, severity of the Incident, and Claimant's dl$tlpllnary history, CPdfsmlssed Claimant from service effective Immediately.
On January 17, 2017, the Organization and the Carrier agreed to prosress Claimant's dlscfpline dispute for resotutlon before this Board usingthe abbreviated procedure provided for InParagraph (Kl of the Plfi Agreement,
Ffndfnq
PlBNo. 7544
Case No. 79
AwardNa.79
Publi Law Board No. 7544, upon the Whole record and art the evrdence, findsthat the parties. herein are: Carrier and Employeswlthlnthe meantng Qf the.RallwayLaoor Act, as a111ended; that the Board has Jurisdiction over the dispute herein; and thatthe parttes to the disputewereelvendue l'IOtlce of the hearing and did pmtcfpatetheretn.
Consistent with the PlBAgreement for this Board, theevldentlary record·tn this proceeding Is comprlst!d of thefollowing: (A)·notice of Investigation, (Bltranscript of Investigation and all related'exhlblts1 (Cl dlsdpltne assessment letter and (0)on-property correspondence related to progression of the clalm.
At the outsetof theheartthe BMWE' objected to CP's withholding Claimant from service, without a reason, prtor to the hearing. Wfthholdlna Claimant from service show& a predetermined outcome by CP which denl•due proceufor Claimant. Rule 20 which allows CP to withhold an employee from service forserious, rules Infractions. The Board finds cPacted under thtl ruleand, tn doing so,Clalmant received due processwith afair and Impartial hearing.
On November 28, 2016, Claimant wasa loader/operator Qf afront-end forklrft. Hls asslsnment wu to load track panels onto the lift and transport them down th4, hlll and onto a flatbed trailer located in a prh,ate. parking lot. Duringthe morning Job l:>rfeffng, there wasdlscusilon aooutdrMng thefront-end. loader: backward dQwn thehtl1, rather than drMri1 theloader forward, to ke!eptheweight on the rear of the forklift forstablllty. There was dlscUSSIOJ'I aboutan obstacle or haiard present with·a third-party pickup truck parked In the private lot near the location where the panels would be loadedontQ the flatbedtralle,. Cfalmantwas instructed not toattempttolifta pat;1el over the pickup tructc; he Indicated such a llftwould not be undertaken by him.
NotwithstandingtheJob briefing dlscus,sion and Instructions, Claimant drove theforklift forward, not backward or In reverse, downthe hilt while transporting a fifty-one (51J foot panel on the11ft. As Clafmant was moving down the hllf from the border or edge of CP property onto the neighboring, adjoining property; the panel shifted to the right. Claimant attempted a corrective move by turning.the forklift to the:left; the leftward movecaused thuear of the forklift to rise off thesround. Tostabinze the forklift and panel and return the rear of theforklift to theground, Claimant lowered the panel at whlcll time the panel fell off tile11ft. and crushed the parked plckup truck, In other wordst Claimant llfted the.track panel over a parked pickup truck ona downhill grade, the panel shifted,.the rearof theloader tipped upward, and the panel crushed the topof the truck.
There Issubstantial evidence In support of the rules violations., The CarrJer's decision to dismiss Claimant from service was not arbitrary or an abus,e of discretion The 8()ard wlll deny the clalrn. In rendertns this decision, theBoard considered alt arguments and evidence presented by the Organlzattott and Claimant.
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PLBNo.7544
Case No. 7
Award No. 79
Claim denied.·
Patrick Hafter Neutral Member
earner Member
Datedthis S+h day of tlJ1.t,o • io11
Ryan Hldalgo
Orsanlzattan. Member
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