Form 1 NATIONAL O ADJUSTMENT
BOARD
THIRD DIVISION
Award o. 37261
Docket o. -36919
0-3-01-3-541
The Third Division consisted of the regular embers and in addition Referee
Steven . ierihen
award
was rendered.
(Brotherhood
of
Maintenance of Way Emloyes
PARTIES TO ISPUTE:
(The Burlington Northern and Santa Fe Railway Company
(jformer Burlington Northern Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline [Level S - ninety (90) day suspension beginning
August 12 through November 9, 2000 and a three (3) year
probationary period] imposed upon r. S. I3ertoli for alleged
violation of Maintenance of y Operating Rule 6.50.1 and
aintenance of ay Safety Rule -14.1.2 in connection with
operating a y-rail involved in rollover incident on ay l ,
2000 near Mile Post 155.5 on the Helena Suivision was
unwarranted, excessive and in violation f the Agreement (System
File - - 02pF/11-00®05 N)®
(2) s a consequence of the violation referred to in Part (1) above,
any mention of this investigation and subsequent discipline shall
be stricken from r. S. ertoli's personal record, he shall
e
made whole for any losses of pay, credited for railroa
retirement, vacation and any other related losses due to the
discipline assessed."
F C®
. .: . The Third Division thAdjustment Board. upon the
hole
record a all, the
ei
enc, fi s tat:
Form l war No. 37261
Page-Docket
o. -36919
. 0-3®01-3-541
The carrier or carriers and the employee or employees involved in tis 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.
Parties
to said dispute were
given
due notice of hearing thereon.
The Claimant established and holds seniority,
dating from ay 19,1969;
in
the
Track ubdepartment: n the day in question, he was assigned and was working as
Track Maintainer on the Helena Subdivision under the supervision of Roadmaster
M. Bernard at Great
Falls,
Montana. The Claimant was assigned to operate a
y-rail
pickup truck weighing less than 1:5 tons in capacity, equipped with
hy-rail
attachments.
The instant incident occurred on ay 19, 2000.
At
approximately 1500 hours,
the Claimant and Machine Operator . Devera were inspecting track, traveling in the
hy-rail at a speed of approximately 20 to 5 miles per hour. At that time, the h-rail
truck derailed on a curve at Mile Post 155.5 on the Helena Subdivision, moving 114 feet
off of the track, an additional 17 feet up a steep embankment, and eventually flipping
over and coming to rest on its roof. The Claimant was traveling t the speed of 0 to 5
miles per hour, although there was a posted speed limit of tiles per hour: However,
it should be noted that the Organization. contens said posted limit applied to trains,,
not h-rail vehicles.. hike neither the Claimant nor his co-worker was injured, the hyrail experienced significant me.
By letter dated ay 24, 2000, the Carrier directed the Claimant to report o
ay 31, 2000, t"Attend investigation in the NSF Annex Conference Room in Great
Falls,
T, t 1000 hours on Wednesday, ay 31, 2000, for the purpose of ascertining
the
facts and determining your responsibility, if any, in connection with your alleged
involvement when BSF Hyrail vehicle 13063 derailed in the curve and rolled over at
approximately 1550 (sic) hors n Friday, ay 1 , 2000 at Mile Post 155.5 n the
Helena' Subdivision while e assigned-Io the'Mo'ntana Division." The Investigation -was
postponed t was ultimately n July 1, 000:
in
lettr
dated a ust 1 , 00, Road master ® L.
Bets,
notifie the
Claimant. as follows:
"This letter ill contt as a result of investigation held n July
1 ; 2000 concernin your failure to determine proper see
. Form 1 . Award o.761
a a 3
Docket o. -36919
g
-3-01-3-541
taking into consideration the track conditions, such as grade,
curvature, rail conditions or, other conditions which might adversely
affect the safe operation of on-track equipment and
your
failure
to
wear seatbelts
while
operating hyrail involved
in
rollover incident at
approximately 1500 hours
on
Friday, ay 19, 2000 near MP 155.
n
Helena Subdivision, you are issued a Level S- (90) ninety day
suspension for violation of Maintenance of Way Operating Rule 6.50.1
'd Maintenance of Way S'fety Rule S-14.1.2. Your p oblationary
n a r
period
will
a for three (3) years."
The (fir anization claims that the discipline imposed
upon
the Claimant was
g
unwarranted harsh and excessive. The Organization contends that the
burden
of
roof in 'a. discipline matter such
as
this is on the Carrier; that burden
of
proof
has
not
®
been met. While the Organization concedes that the Claimant was involved in said
accident it is the Organization's
position
that the accident vas not caused by the
Claimant's negligence. It agues that the Claimant was operating the
vehicle
correctly
and that equipment failure caused the accident. In addition, the Organization claims
that it was not provided ith an adequate notice of the charges and finally, that the
conducting prejudged
the Claimant. According to the Organization, the Carrier
should now a required to clear the Claimant's record of any mention of the incident,
to coin ensate him for all of his lost wages,
including lost
overtime, and to make him
p
whole for vacation, holidays, and seniority.
Conversely' the Carrier takes the position that it met its burden of roof. The
Claimant was afforded fair and impartial Investigation in accordance with the
rquireents of the Agreement. The Carrier considers the Claimant guil
s
charged.
According to the Carrier, a review of the transcript developed during the Investigation
leaves no doubt that the Claimant violated the applicable ides.
In discipline cases, the Board sits s an appellate forum. a
o
not weigh the
evidence novo. s such, our function is not to sstitute our judgment for the
Carrier's nor to decide the matter in accor with
what
we might or might
riot
have
done
had
it
been
ours
to
determine,
but
to
rule
upon
the
question
f
whether
there is
substantial evidence to sstain a finding of uilty. f the question is decided in the
affirmative, a are not warranted in disturbing the peal unless a can say it appears
fro the record that the Carrier's actions were unjut, nrasl or arbitrary, s
td constitute an abuse the Carrier's s discretion,',' (See Second Division Award 7325,
Third Division Award 1 1.)
For 1 Award o.761
Page
4'
Docket o. NW-36919'.
04-3-01-3-541
After a review of the evidence, the Board finds that the Carrier has proven that
on ay 19, 2000, the Claimant was operating a hy-rail at a high rate of speed, thereby
directly leading to the accident in question in violation of the
Rules
cited by the Carrier.
The Board finds that the Claimant was operating the by-rail. at speed that as unsafe,
for conditions.
However; we sustain the Organization's position with
regard
to the eventual
charga that the Claimant was not wearing his seatbelt. We find that the
Claimant vas
not initially charged with a failure to wear his seatelt. Thus, we find that the Claimant
was not
on
notice of said charge, a violation of .Rule 40. See Fourth
Division
Award
13 ". . . It is
a fundamental principle that
n
employee can only be found to be i
violation of those rules with which he is charged, as
those
rules
are
defined in
the
Notice
of Charge:")
Based on this determination, we find that the discipline
imposed
*in this matter,
was excessive. a find that a more appropriate discipline shall be 60-day
suspension
with a two-year probation. Thus, a will reduce the discipline
from a
0-day
ss ension with a three-year probation to a 60-day 'suspension with
a 2-year
probation:
p
The Claimant shall be made whole for the additional 30 days served.
AWARD
Clai sustaine in accordance with the Findings.
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 the
and
effective on
or
before 30 days following the postmark date the and i
trnsmitte to the parties.
TIT T BOARD
By Order f Third Division
ate at Chicago, Illinois, this 5th ay f November 2 .