PUBLIC LAW BOARD NO. 7633

UP433LW I 2

Case No.: 14/Awal'd No.: 14

System File No.: UP:1572495MPR/BMWED:

Claimant: Walter R. Washington

UNION PACIFIC RAILWAY COMPANY )

)

-and- )

) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYES DIVISION )

Organization's Statement of Claim:

l. The Level 5 UPGRADE discipline assessment (dismissal from service) to Mr. Walter R. Washington for an alleged violation of Union Pacific Rule

1.6 Conduct; Rule l.l.2 Ale11 and Attentive; Rule 1.13 Reporting and Complying with Instructions; Rule 8.2 Positions of Switches; Rule 8.3 Main Track Switches; Rule 8.8 Switches Equipped with Locks, Hooks, or Latches, and Rule 70.1 Safety Responsibilities was harsh and unjustified.

2. As a consequence of the violation referred to in Part 1 above, the Claimant shall have the Level 5 removed, the Railroad will reinstate the Claimant immediately to his former position and/or right to exercise his seniority and compensate the Claimant for all lost time he could have worked and for any and all expenses he incurred while being dismissed from service.

Facts:

By letter dated July 24, 2012 the Claimant was directed to attend an investigation and hearing on August 7, 2012: "to develop the facts and place responsi bility, if any, that while employed as a Track Foreman on Gang 3898, on the Enid Subdivision, near Milepost 322.5, on July 12, 2012, you allegedly failed to return the switch to normal position, for main track movement, and lock it in that position. You then cleared the UP6517 South, allegedly causing the lead engine to enter the switch, going into emergency, stopping sh011 of entering the 727 track, containing on-track Tie Gang equipment."

The letter further noted that the failure, if substantiated, would constitute a violation of the rules set fo11h in the above-noted Statement of Claim and that the

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Claimant could be assessed Level 5 discipline (permanent dismissal) under the Can'ier's UPGRADE discipline policy.

Carrier Position:

More than substantial evidence supports the decision to dismiss the Claimant. He was solely responsible for the switches within his limits and no other employee indicated that he/she had operated a switch within authority limits. Clearly the Claimant was careless and negligent. The proven carelessness was serious enough to warrant dismissal, which the Board should not overturn. The Claimant received a fair and impartial hearing devoid of egregious procedural errors that violated the Claimant's due process rights and would justify setting aside the discipline.

Organization Position:

The Carrier has not met its burden of proof. The Claimanf s testimony and statement establish his proper performance of duty and there is no evidence to show that train UP65 l 7 entered protected territory. The Carrier's circumstantial evidence must give way to three statements from Track.men who saw the Claimant properly align the switch main to main. The discipline was excessive and unwarranted, serving only to punish rather than con·ect. The Claimant, a 38-year employee, was a dedicated, hard worker. Dismissal for apparently following all relevant rnles and regulations was inappropriate.

Findings:

The Organization has not alleged procedural defects in this case, therefore the Board has not considered such defects. There is no question that the switch near MP

1. on the Enid Subdivision had not been realigned for main track movement. The Board believes that had the switch been realigned, surely the Carrier would not have sent MTM Sanderson and Track Foreman Worley to investigate and get a statement from the Claimant and the Claimant would not have been sent for a drug test. The question then becomes: ls there substantial evidence that the Claimant failed to realign the switch?

   
   

   The patties do not disagree that the Claimant as Track Foreman was the ETC responsible for the switches within his limits, nor do the parties disagree that the lock found on the ground beside the switch belonged to Gang 3898. If the switch had been properly realigned at about 1150 as stated by the Claimant and in the three statements from Gang members. then the lock should have been on the switch and not on the ground. Alternatively, the switch was properly realigned at 1150 and thereafter lined for the siding. There is no reason to believe that such action would have been taken by somebody not in Gang 3898 since the lock showed no sign of being tampered with and somebody not a member of that Gang would not have had a key. If the lock was removed by a member of the Gang after 1150, the Claimant as EIC had no explanation

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   for how or why that might have happened. Having considered atl of the evidence, the Board finds that the Claimant was properly held responsible and that the above"'.'noted question must be answered affirmatively.

   In considering the discipline lmposedt the Board }ms;. carefully considered. the cases provided by the parties, with particulal' emphasis on those eases involved this Carrier and this Organiza,tion. There can be no argument that.safety must be a paramount concern every minute that any employee ison duty in any capacity. This isan industry in which breaches of safety rules can lead to extensive property damage, serious injury and even death. TI1is Board aild other Boards have so noted in prior awards,. The Claimant's lapse in this case cannot be understated. It did not lead to serious consequences, but it might have.

   
   

   At the same time, tire Claimants 38 years of service is deemed significant His record is not perfect, but includes only four disciplinary measures ptior to this latest dismissal, with the first three dlseipHnary actions the result of various attendance issues. The Board has considered the July 2006 dismissal and reinstatement for a safety issue and has also considered the six years that have passed without discipline sincQ then and the Claimant's Level O UPGRADE status at the time of this latest discipline. All things considered) the Board believes that co1·rective discipline is more appropriate than a punitive dismissal. This case bears simirarities to PLB No. 6402, Case No.111 in which a claimant with 23 years of service was dismissed for a violation of Rule 1.6 Careless of Safety after having caused a collision resulting in property damage. At the time that claimant was at Level O ·UPGRADE and had gone lO years without discipline. The Board; chaired by Referee Martin H. Malin, reinstated the claimant withotit compensation. We take the same approach inthis ca.,e on a non-precedendal basis.

   
   

   Award:

   
   

   Claim sustained in part and denied, in part.

   Order:

   
   

   The Board; after consideration of the dispute identified a.hove;hereby orders that the Level S UPGRADE discipline (dismissal ftom service) be expunged from the Claimant's record and th it be replaced with reinstate1nentwithout compensation. The Carrier is to make the award .effective on or before th{rty (30) days after the award is adopted.

   
   

   

   

   Andrew Mulford, Organization Member

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   1. B. Helbum, Neutral Referee

Austin, Texas

January J 5, 2015