Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33160
Docket No. MW-33457
99-3-96-3-982
The Second 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:
(Denver and Rio Grande Western Railroad Company
STATEMENT OF CLAIM
:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The discipline [thirty (30) day suspension] imposed upon Track
Patrolman B. C. Espinoza for alleged failure to comply with Rules
1.1, 1.6 and 1.13 of the Southern Pacific Lines Safety and General
Rules for all employees and Rules 71.1.3 and 71.1.6 of the Chief
Engineer's Instructions for Maintenance of Way and Engineering
in connection with his allegedly applying excessive lubrication to the
surface of the ball
of
the rail in the vicinity
of
the Royal Gorge, on
Thursday, July 28, 1994, was arbitrary, capricious and on the basis
of unproven charges (System File D-94-72/MW M95-1).
(2) As a consequence of the violation referred to in Part (1) above, the
Claimant shall receive the benefits of the remedy prescribed by the
parties in Rule 29(d)."
FINDINGS
:
The Second Division of the Adjustment Board, upon the whole record and all 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.
.r
Form 1 Award No. 33160
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99-3-96-3-982
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
B. C. Espinosa, Claimant, established seniority as a Track Patrolman. When this
dispute arose, he was headquartered at Pueblo, Colorado, under the supervision of
Roadmaster L. J. Martellaro.
In addition to the required inspection of track twice a week, Claimant is also
required to make minor repairs such as replacing missing track bolts, raising low spots
in the rail and driving down high spikes. Pertinent to this dispute, Mr. Espinosa is also
responsible for maintaining and filling approximately 45 stationary rail lubricators
located on his territory.
Claimant was on vacation July 18,1994 through July 24,1994. During that time,
the track from Pueblo to Salida was patrolled by Roadmaster Martellaro who noticed
"several" lubricators were not functioning. Claimant returned to work on July 25,1994,
and on the following day, July 26, the Roadmaster instructed him to fill the empty
lubricators and oilers. Claimant told the Roadmaster that he would "try to get them all
working."
Subsequent to Roadmaster Martellaro's directive to Claimant, on July 28, 1994,
Engineer Versteeg was operating a train with 105 empty coal cars and three
locomotives in a westbound direction from Canon City toward Minturn. According to
the Engineer, he noticed "excessive" grease on top of the rail between Canon City and
Salida, which caused his train to lose speed and the wheels to slip. The Engineer
contacted the Dispatcher and reported that due to the condition of the track his train
would be delayed. Mr. Versteeg then communicated with the westbound train behind
him, and also with an eastbound train, and was informed that both Engineers had
encountered similar difficulties and wheel slippage.
Roadmaster Martellaro testified that he overheard the radio communications
regarding track in his territory and was advised that the track was reported to be "very
slick." Roadmaster Martellaro hi-railed to the area, and he found both sides of the rail
to be "so covered with grease that the rail could barely be seen." law
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As a result of the above facts, Claimant was charged with various the Rules
violations and a formal Investigation was held. Following the Investigation, Claimant
was suspended for 30 days.
The Organization protested the discipline maintaining that although there was
excessive grease on the top of the rail, the evidence did not "conclusively prove" that
Claimant was responsible or that he had applied an excessive amount of grease to the
rail. For his part, Claimant alleges that he was "instructed by Roadmaster Martellaro
to grease all the curves and all the tangent track where the oilers were not working"
from Canon City to Salida. Claimant further alleges that he stopped application near
functioning lubricators and resumed it when necessary, maintaining "proper"
adjustment on the spray nozzles. In that connection, Claimant noted that the train
which immediately proceeded Engineer Versteeg's did not encounter any excess grease,
and must therefore, have activated the lubricators which he had filled and repaired as
he was instructed on July 27, 1994. Finally, Claimant testified that he was "following
the Roadmaster's instructions," although he recalled protesting that the amount of
grease applied was excessive.
Carrier denied the claim asserting that the Claimant "put" the grease on the top
of the rails "deliberately and with knowledge" of the potential harm. Regarding
Claimant's allegation that the Roadmaster instructed him to apply the grease, Carrier
notes that two witnesses to the conversation did not hear that instruction. Finally,
Carrier contends that Claimant violated the Rules and established a "very dangerous
condition" by doing so. Carrier maintains that Claimant was treated "very leniently"
in light of the circumstances.
Agreement Rules pertinent to this dispute state:
"RULE 1.1 - SAFETY
Safety is the most important element in performing duties. Obeying the
rules is essential to job safety and continued employment."
"RULE 1.6 -CONDUCT
Employees must not be:
1. Careless of themselves or others.
2. Negligent
Form 1 Award No. 33160
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99-3-96-3-982
6. Quarrelsome
7. Discourteous"
"RULE 1.13 - REPORTING AND COMPLYING WITH
INSTRUCTIONS
Employees will report to and comply with instructions from supervision
who have proper jurisdiction. Employees will comply with instructions
issued by managers ofvarious departments when instructions apply issued
by managers of various departments when instructions apply to their
duties."
"RULE 71.1.3
All work must be performed in a manner that complies with Company
rules, departmental instructions, guidelines, and standards. If in doubt as
to the proper procedures to follow or precautions to take, employees must
consult with their supervisors."
"RULE 71.1.6
It will be the responsibility of each employee noting or causing any
hazardous condition to correct or report it promptly. Steps must be taken
to prevent possibility of injury to employees until the hazardous condition
is corrected."
There is no dispute that on or about July 27, 1994, Roadmaster Martellaro
directed Claimant to fill dry lubricators on the territory for which he was responsible.
The record indicates that with the exception of one of the oilers, located at MP 66,
Claimant did as he was instructed. The record evidence also indicates, however, that
in addition to filling the lubricators, Claimant, while operating his hi-rail vehicle,
applied an "excessive amount" of lubrication to the ball of the rail in the vicinity of
Royal Gorge on Thursday, July 28, 1994.
Claimant's defense was premised upon the assumption that: 1) He was merely
following the Roadmaster's instructions; and, 2) The excessive lubrication on the rail
resulted from newly filled lubricators which were "tripped" prior to the arrival of
Engineer Versteeg's train.
~I
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With regard to excess lubrication occasionally caused by full oilers, Engineer
Versteeg stated that there are "certain" lubricators which regularly apply more grease
to the rail than necessary. However, the Engineer also stated that any slippage resulting
from excessive lubrication would be "limited to a certain point" past which traction was
restored. Further, and in that connection, when asked if he had heard an interchange
between the Dispatcher and Claimant regarding the excess lubrication on the rail,
Engineer Versteeg testified that had heard Claimant acknowledge that he was applying
lubrication via his hi-rail vehicle.
Claimant asserted that Roadmaster Martellaro had instructed him to grease the
top of the rail, however, the Roadmaster vehemently denied ever issuing the instruction.
According to the Roadmaster, he told Claimant only to "get the oilers going." Although
Claimant asserted that at least two individuals had overheard the Roadmaster giving
the instruction, record testimony indicates that the only instruction that was overheard
was the Roadmaster telling Claimant to: "Make sure to grease the shiny curves because
the oilers were not putting enough grease on them."
The credibility issues presented at the Investigation were resolved against
Claimant by Carrier. It is well settled that this Board, functioning as an appellate
arbitration tribunal working
off
of a cold transcript, is unable to second guess such
credibility determinations. So long as Carrier produces a preponderance of evidence
which, if believed, establishes Claimant's culpability, it has met its burden of proof.
Indeed, we have only to look at Claimant's own testimony in which he stated the
following:
"Q. Have you ever applied grease in this manner before?
A. No, I have not.
Q. And this grease came from the lubricators or from your truck?
A. It came from the truck.
Q. Do you feel the grease that you applied on Thursday with the
lubricator on the truck was applied excessively?
A. I thought it was too much.
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99-3-96-3-982
Q. May I ask you this, are you telling me that when you left Mr.
Martellaro's office you knew in your mind that you were going to
create a hazardous condition and yet you went and did it?
A. Well, I didn't know for sure if it would create a problem, I figured
it probably would."
We must conclude that Claimant did, on July 28, 1994, apply excess lubrication
to a portion of track thereby causing hazardous conditions for at least three trains on
July 28, 1994.
In light of Claimant's many years of experience on the railroad and his admission
that he "figured" his actions would "create a problem," we do not find Carrier's
imposition of a 30 day suspension to be unreasonably harsh in all of the circumstances.
Based on the foregoing, this claim is denied.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 25th day of March 1999.