Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32013
Docket No. MW-31704
97-3-93-3-735
The Third Division consisted
of
the regular members and in addition Referee
Nancy F. Murphy when award was rendered.
(Brotherhood
of
Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
( (Eastern Lines)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The thirty (30) days
of
suspension imposed upon Machine Operator
M. H. Martinez for alleged violation of Rule 2.11.8 on September
15, 1992 was arbitrary, capricious, on the basis of unproven charges
and in violation
of
the Agreement (System File MW-93-1/MWD 932 SPE).
(2) As a consequence
of
the violation referred to in Part (1) above, the
Claimant's record shall be cleared of the charges leveled against
him and he shall be compensated for all wage loss suffered and
properly credited for all benefits in connection therewith."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and ail the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act, as
approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Form 1 kward No. 32013
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97-3-93-3-735
Parties to said dispute were given due notice of hearing thereon.
M. H. Martinez (Claimant) has been employed by Carrier for approximately 18
vears, and has established and holds seniority as a machine operator. He was assigned
as such on a ballast regulator, under the supervision of Roadmaster W. Zunker and was
working in the vicinity of HebromOlle, Texas at the time of the incident giving rise to this
dispute.
On September 15. 1992, Claimant was operating a ballast regulator in the vicinity
of Mile Post (MP) 704. The ballast regulator, which normally works directly behind a
tamper, is used for filling in the track and "dressing" it for final inspection. Claimant
had been instructed, by his supervisor, to perform work at MP 701 while the tamper
raised and lined track near MP 704.6. After Claimant had finished the assigned work
at NIP 701, he traveled to the west switch at Collado, Texas, where he was to meet the
tamper being operated by Machine Operator Lopez. As Claimant approached the west
switch, he applied his brakes: however, the ballast regulator slid, some 574 feet, colliding
with the tamper. The collision resulted in damage to the front attachments (buggies) of
the tamper.
Claimant maintained that the collision occurred a result of "an excess amount of
grease on the rail", caused by a rail oiler located at MP. 705.30. However, Carrier
asserted that the accident occurred as a result of Claimant traveling at "an excessive
speed."
On the following day, September 16, 1992, the "incident" was reenacted.
According to Roadmaster Zunker, on the date of the accident, Claimant slid
approximately 574 feet, and on the day of the reenactment, he traveled only 450 feet
prior to the point of impact. However, Work Equipment supervisor Quesada stated that
Mr. Martinez actually slid 585 feet on the day the incident was reenacted, some 11 feet
further than on the date Carrier charged him with the improper the rule violation.
Regardless of the inconclusive reenactment "results", on September 30, 1992,
Carrier assessed Claimant with a 30 day suspension for his "involvement in" the
collision of his machine and the buggies of the tamper. Carrier premised the discipline
on Claimant's alleged violation of Rule 2.11.8, which states:
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97-3-93-3-735
"Operators must have track cars under control at all times and be
able to stop short of one-half of the sight distance or before striking
an obstruction on, or foul of, the track."
In accordance with Article 14 of the Agreement - DISCIPLINE AND
INVESTIGATION, Claimant requested an Investigation, which was originally
scheduled for October 20, 1992, but was postponed, and held on October 29, 1992. In
Carrier's Notice regarding said postponement, it stated that Claimant had instead,
allegedly violated Rule 2.13.32, which provides:
"Track machines must be operated at a safe speed at all times,
subject to conditions, especially on grades, both while working and
while running light.
While traveling, machines must be separated from other machines
in such a way as to avoid any undesired contact between any two
machines."
At the outset of the Hearing, Carrier qualified the alleged dual Rule violation by
stating that:
"Let the record show at this time it is noted that Mr. Martinez was
suspended from service for Rule 2.11.8 which he was charged with
in the original charge letter and then changed to Rule 2.13.32 in the
corrected letter. In reviewing both rules, 1 find that both rules
applied for this alleged violation. Being that Mr. Martinez was
suspended for Rule 2.11.8 and that Mr. Martinez requested this
investigation per Rule 2.11.8, it is my determination that we will
investigate Rule 2.11.8 only in this hearing. Let the record show
that after the opening of this investigation I'll entertain a request
for recess from Mr. Sanchez or Mr. Martinez if additional time is
needed to prepare because of the change in the charge letter."
The Organization did not ask for additional time to prepare, but, Mr. Sanchez did
request that the Investigation be terminated because: "Mr. Martinez was operating a
track machine, not a track car. It is our position that a roadway machine is a machine
that can be operated on the highway and on the track, and Mr. Martinez is and was not
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97-3-93-3-735
operating a roadway machine or motor car on this date as charged." Carrier denied the
Organization's motion to terminate the Investigation, reiterating that Claimant "could
have been charged with either Rule 2.11.8 or 2.13.32." Subsequent to the Investigation,
Carrier upheld the discipline
of
a 30 day suspension.
The Organization submitted a claim premised upon the following:
(1) Excessive grease on the rail led to Claimant's inability to stop prior
to colliding with Mr. Lopez' tamper.
(2) There was "absolutely no evidence" that Claimant was negligent in
the operation
of
his assigned machine, and in light
of
an 18 year
unblemished record, the discipline is harsh and excessive.
(3) Claimant cannot be charged for the cited Rule, Rule 2.11.8, as
Claimant was not operating a motor car, push car, hl-rail vehicle or
any on-track roadway machine.
Carrier denied the claim, maintaining that:
"Review
of
the transcript
of
the investigation clearly indicates that
Mr. Martinez was in violation
of
the rules for which he was cited,
and the evidence educed (sic) supports the discipline assessed."
The Organization's threshold argument, regarding the change in the Agreement
Rules cited, and the appropriateness, or lack thereof, is not persuasive. Carrier's
assertion that either, or both Rule 2.11.8 or 2.13.32, could apply, in these particular
circumstances, is well grounded. There is no showing
of
actual prejudice, unfairness or
lack
of
understanding
of
the charges, by Claimant or the Organization. Moreover, the
Organization waived the right to have additional time to prepare. Therefore, the
Organization's contention, that that procedural "flaw" Is fatal to Carrier's case is
without merit.
Turning to the merits
of
this dispute, a close review
of
the transcript fails to
support Carrier's contention that the accident would not have occurred, but for
Claimant traveling at "an excessive rate of speed." In that connection, we need look no
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further than the testimony of Carrier witnesses' Zunker and Quesada. Under
questioning by Organization Representative Sanchez, Roadmaster Zunker testified:
"Q. Can you tell me what, in your interpretation of your investigation,
did you determine what cause this regulator to run into the tamper?
A. My
opinion of what happened is that Max Martinez failed to
operate his machine at a safe speed because of grease on top of the
rail and he was, and ran into the buggies on the tamper.
Q. You say he failed to go at a safe speed, what would you consider a
safe speed when you say there's grease on top of the rail?
A.
That, you know, it would be a speed that would allow him to stop
short of the tamper.
Q. And what were your findings in your reenactment?
A. On the first day, Max Martinez marked a spot on the rail
approximately 574 feet east of where the buggy was sitting and this
is where he told me he began ...where he began to stop or he set the
brakes on the machine. And the following morning we took the
regulator back to CoVado and he started going westward at about
20 mph., and then he set the brakes for about the same place, and
the next morning he slid for about 450 feet, some 124 feet less than
the day before."
Regarding the Organization's assertion that excessive grease on the rail, rather
than excessive speed, was, in fact, the primary cause of the accident, we have Mr.
Sanchez' interrogation of Roadmaster Zunker and Work Equipment Supervisor
Quesada:
"Q. You also said that there was a grease lubricator at mile post 705.30
and another one at mile post 702.30. During the past have you had
any problems with these two greasers as far as not functioning
properly?
A. Oh yes sir, uh huh. We have a rail lubricator mechanic that works
on those things, they constantly need work on them.
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97-3-93-3-735
Q. Mr. Zunker. the amount
of
grease that was on the rail, is that the
normal amount
of
grease that would be on the rail depending on
various greasers located on the main line? Or was it in excess
of
the
normal amount?
A. 1 would say it was in excess
of
the normal amount.
Q. Mr. Quesada. as an A&VVE Work Equipment Supervisor and being
in an operator's seat on a ballast regulator, do you think an
operator could see the grease on the rail?
Finaily, in addition to that testimony, Claimant stated:
"Q. Are you familiar with an oiler being located at this mile post
location?
A. Yes sir, 1 was an oiler myself.
Q. You stopped at other locations on that day. did you have any
problem stopping at any
of
these other locations as far as did you
notice anything problem with the brakes on your machine?
A. No sir. I had to make a real sudden stop early that morning, for a
bridge crew, and everything stopped normally, everything worked
correctly, as it should. But there was no grease on that rail either.
Q. Do you feel you were under compliance with the Rule?
A. 1 had my machine under control at all times, not noticing that there
was grease on the rail. If it would have been foggy, snowing or
raining, that accident never would have happened `cause I would
have taken proper steps to slow down way before I ever got there.
But I couldn't see the grease, all the time I was traveling that
direction. I didn't have any idea that grease was there, and I
thought I had full control of my machine, as I normally do."
Aside from speculation, there is no persuasive proof, in this record, that Claimant
was traveling at a speed which could be considered "excessive" for the conditions. On
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97-3-93-3-735
the other hand, the undisputed record establishes that there was an extraordinary
amount of grease on the rail. a condition which Claimant could not have observed or
anticipated. Based on the evidence presented, we conclude that Carrier erred in holding
Claimant responsible for the collision. Therefore, the imposition of any discipline in this
case was arbitrary and unreasonable. The claim is sustained.
AWARD
Claim sustained.
ORDER
This Board; after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 6th day of May 1997.