Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35714
Docket No. MW-35752
01-3-99-3-739
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:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline [Level 3 requiring a five (5) day actual suspension]
imposed under the date of June 11,1998 upon Roadway Equipment
Operator N.L. Milner for allegedly violating Union Pacific Rules
42.2.2 and 42.6 in connection with a grade crossing incident at Mile
Post 221.49 on the LaGrange Subdivision on May 13, 1998
involving a motor vehicle and the crane he was operating was
arbitrary, capricious, on the basis of unproven charges and in
violation of the Agreement System File J-9848-64/1154844).
(2) As a consequence of the violation referred to in part (1) above, Mr.
Milner's record shall be cleared of the Level 3 discipline and five (5)
day suspension and he shall be paid for all time lost on July 6, 7, 8,
9 and 10, 1998."
FINDINGS:
The Third 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.
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This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
On May 13, 1998, Roadway Equipment Operator N. L. Milner (Claimant) was
operating the MP62 (Ohio Crane) on Gang 6903. The Claimant was working in the
vicinity of MP 221.49, LaGrande Subdivision, when he struck a vehicle at a public road
crossing. As a result of the accident, the Carrier sent the Claimant a Notice of
Investigation directing him to appear at the LaGrande Depot on Wednesday, May 27,
1998.
On June 11,1998, Manager Track Programs Riviera informed the Claimant that:
"This refers to Formal Investigation held at the Union Pacific Railroad
Company on Wednesday, May 27, 1998, regarding that while working as
R.E.O. you struck a vehicle, at a grade crossing on, on May 13,1998, while
operating the MP62 on Gang 6903, this is in violation of Union Pacific
Rule 42.2 and 42.6 effective April 10, 1994.
I have now carefully reviewed and have considered all testimony contained
in the hearing transcript. I have found more than a substantial degree of
evidence was presented to warrant sustaining all charges brought against
you, for your violation of the above cited rules. Accordingly your record
will be assessed a Level 3 discipline.
Level 3 Discipline requires a five (5) day actual suspension. You may also
be required to review rules which pertain to the specific violations involved
prior to returning to work and a Corrective Action Plan must be developed
upon return to work."
The Organization protested the discipline, contending that the accident that
occurred on May 13,1998 "was not Claimant Milner's fault." According to the General
Chairman, the Claimant was operating at a slow speed and could have stopped half the
distance the track is seen to be clear, however, "The lady stopped, but did not stay
stopped at the stop sign and then moved to the crossing and caused the accident."
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The General Chairman further asserted that because the Carrier eliminated the
Crane Helper position, the Claimant did not have anyone available to flag the crossing,
which would have prevented the accident from occurring. Finally, the General
Chairman maintained that there was only "a minimum amount" of damage to the crane
and no mention of damage to the automobile, therefore, no discipline should be assessed.
For his part, the Claimant stated that:
"The vehicle stopped at the stop sign, and set there as I approached. I was
slowing down. I took my air off cause she was, the blue vehicle was
stopped. And when . . . as soon as I started taking my air off she pulled
out in the crossing and stopped again and by then when I dynamited it, I
dropped my air."
The Carrier denied the claim, maintaining that the Claimant was afforded a fair
and impartial Hearing, and there was sufficient evidence to warrant sustaining the
charges brought against him. Given the "serious nature of the proven offense," the
assessment of discipline was not unjust, unreasonable, excessive, unwarranted, harsh or
arbitrary, according to the Carrier.
The following Rules, deemed pertinent to this dispute, state the following:
RULE 42.2.2
"Track cars and machines must be operated at a speed that will allow the
operator to stop in 1/2 the distance the track is seen to be clear.
Where maximum freight train speed is lower, it will govern.
Reduce speed on curves and branch lines as conditions require and when
hy-railing at night.
When it is raining, or when the rail is wet, only essential hy-rail vehicles
must leave the track as soon as possible.
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*Operators must take into consideration that a greater
distance is required to stop a track car under these
conditions.
When approaching workmen or others on or near the track, reduce speed
and, if necessary stop.
RULE 42.6 GRADE CROSSINGS
Track cars and on-track equipment must approach all grade crossings
prepared to stop, and must yield the right-of-way to vehicular traffic. If
necessary, flag the crossing to protect movement of a track car or on-track
equipment."
The Rules noted above are clear and unambiguous. In pertinent part Rule 42.2.2
states that: "When approaching workman or others on or near the track, reduce speed
and, if necessary stop." That Rule also stipulates that when it is raining, "Operators
must take into consideration that a greater distance is required to stop a track car under
these conditions." Rule 42.6 provides that: "Track cars and on-track must approach all
grade crossings prepared to stop, and must yield the right-of-way to vehicular traffic."
At the outset, the Claimant admitted that it had been raining "off and on"
throughout the day, but stated that it was "only slightly sprinkling" when the accident
occurred. According to the Claimant, he initially slowed to "ten or twelve" m.p.h. to
yield the right-of-way. However, when he "thought" the vehicle would remain
stationary, he proceeded toward the crossing and was then unable to stop when the
vehicle attempted to cross the track. When questioned about his decision to proceed
through the crossing, the Claimant admitted that he had "no guarantee that she was
going to stay put."
In that connection, when asked if he had made arrangements with anyone to
protect the crossing ahead of him, the Claimant stated that he had not. The Claimant
went on to explain that:
"I was unfamiliar with the small farmer's crossings there. I knew there
was a main crossing down just a little ways from that. But I was
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unfamiliar with the small farmer's crossing. I haven't worked over that
area for a long time."
Finally, when asked
if
he thought a Flagman could have prevented the incident,
the Claimant replied: "She could have possibly run over anybody."
The Claimant's failure to properly yield the right-of-way resulted in the crossing
accident with the driver
of
the car being transported to a hospital for emergency medical
care. Therefore, in these circumstances, any attempts to mitigate the discipline by
discussing the dollar amount
of
damage to the Ohio Crane or to the private automobile
are simply not appropriate.
Based on all
of
the foregoing, we do not find the Carrier's imposition
of
Level 3
Discipline harsh or otherwise inappropriate.
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
Third Division
Dated at Chicago, Illinois, this 19th day
of
September, 2001.