Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35984
Docket No. MW-35909
02-3-99-3-936
The Third Division consisted
of
the regular members and in addition Referee
Nancy F. Eischen when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Missouri
( Pacific Railroad Company)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Level 2 Upgrade Discipline Assessment assessed Machine
Operator C. Brown for his alleged responsibility
of
fouling the track
with his assigned weed mower on September 29,1998 was without
just and sufficient cause, based on an unproven charge and in
violation
of
the Agreement (System File MW-99-28/1166006 MPR).
(2) As a consequence
of
the violation referred to in Part (1) above,
Machine Operator C. Brown shall have the discipline'... removed
from his personal record, for four (4) hours at his respective
straight time rate
of
pay for attending the hearing on September 29,
1998 and all expenses the claimant aquired (sic) to include meals
and mileage reporting to Spring, Texas, account the carrier failed
to produce sufficient evidence to support their charges for the
alleged violations
of
Rule 136.4 and the claimant's rights were
violated with regard to `Due Process' and in accordance with Rule
12,
of
the current agreement between the Union Pacific Railroad
and the BMWE, SP, Atlantic Federation respectively."
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.
This Division
of
the Adjustment Board has jurisdiction over the dispute involved
herein.
Form 1 Award No. 35984
Page 2 Docket No. MW-35909
02-3-99-3-936
Parties to said dispute were given due notice of hearing thereon.
On August 11, 1998, Machine Operator C. Brown (Claimant) was instructed to
mow the grass and high weeds between Storage Tracks 2 and 3 at Strang Yard. While
performing the task, the Claimant's machine became "bogged down" in the mud
between the tracks. When the Claimant was unable to free the machine, he began to
walk toward the Yard for help. According to the Claimant, he had been walking for
approximately five minutes when a fellow employee offered him a ride to the yard.
However, as the pair started toward the yard, two FRA Inspectors who were on the
property, and had been observing the Claimant, stopped the Claimant to question him
about leaving the machine unprotected. Thereafter, the Carrier received a citation from
the FRA who had observed the Claimant "fouling the main line without permission or
authority."
By Notice dated September 16, 1998, the Claimant was directed to attend a
September 29 Hearing in connection with the events of August 11. On October 15, the
Claimant was informed that he had been found guilty of violating Rule 136.4 of the Chief
Engineers Instructions, and assessed with a Level 2 Discipline.
The Organization protested the discipline, noting at the outset that the FRA
report was "illegible." The General Chairman further noted that the FRA Inspectors
were "no closer than 200 yards" and "as far away as six (6) or seven (7) football fields"
away from the Claimant while observing him.
The General Chairman maintained that the Carrier based its decision to
discipline the Claimant "solely upon the testimony of Manager Track Maintenance
White, who did not witness Claimant operating the machine." And, although White did
interview the Claimant and examine the marks in the mud, he did not take any pictures
or measurements, rendering his testimony "speculative," according to the General
Chairman.
For his part, the Claimant stated that he did not cross or foul Storage Tracks No.
2 and 3 on August 11, and was therefore, not guilty of failing to provide on-track safety
protection.
The Carrier denied the claim, asserting that:
"Claimant was rules qualified at the time of the incident and responsible
for complying with Carrier's rules. The FRA's determination that the
Claimant was in violation of the On Track Safety rules after watching him
work is substantial evidence in and of itself to support the discipline
assessed. The FRA inspection report was entered as an exhibit during the
hearing and outlines the Claimant's actions of violating the rules."
Form 1 Award No. 35984
Page 3 Docket No. MW-35909
02-3-99-3-936
Rule 136.4 On-Track Safety Procedures states, in pertinent part:
"On-Track Safety can be provided for roadway worker by the following
methods:
*Track and Time, Track Warrant, Track Permit . . . train
approach warning, train approach warning system, or flag
protection."
The Organization argues that the Claimant was relegated to a section ofthe Yard,
alone and without communication. Moreover, the Organization asserts that the
Claimant was more than four feet away from the track and did not need flag protection.
However, Manager Track Maintenance White, who investigated the August 11
incident, testified that:
"Q. Was Mr. Brown's weed mower fouling the track?
A. Based on the marks and talking with Mr. Brown, yes he would be
fouling the track. He was too close to the track without protection."
The Claimant was assessed a Level 2 discipline which is one day
of
alternative
assignment, with pay, to develop a corrective action plan. Despite the Claimant's
protestations otherwise, the record evidence supports the Carrier's assertion that, on
August 11,1998 the Claimant violated Rule 136.4 when he allowed equipment to foul the
track without authority and without protection.
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
March, 2002.