Form 1 NATIONAL IL ADJUSTMENT
BOARD
THIRD DIVISION
Award, No. 3726
Docket No. MW-3780
04-3w03-®237
The Third
Division consisted of the regular members and
in
addition
Referee
Steven : i
erihen
award was rendered.
(Brotherhood
of f Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union
Pacific
Railroad
Company
STATEMENT OF CLAI
"Claim of the System Committee of the Brotherhood that:
(1) The discipline [Level with five (5) day actual suspension]
imposed under date of January 4, 2002, upon r. E.
iezorek for alleged violation of Union Paciflc Safety Rule 70.3
and Maintenance of ay Rules 42:3, 42.4 and 42.4.2 in
connection with charges that while working as section foreman
on Gang 4 13 occupied Main Track Two at P 16 on South
. Morrill Subdivision with the hy-rail section truck without
proper authority within switch limits at C16 n December 14,
2001 was arbitrary, capricious, on te basis of unproven
charges and in violation of the Agreement (System ile -
(2) s a consequence f the violation referred ti art (1) above,
r. . Wiezorek's recor shall a cleared the Level
discipline and he shall be aid for all lost compensation for the
five (5) days he as withheld fro service."
FINDINGS:
The Thin Division
th just ent Board, upon the whole .record all the
evidence, fends that.*
For 1 ward o. 3726
Page 2 Docket No. MW-37869,
0-3-0 - -237
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 aroveJune 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.
t the time of the incident on December. 13, 2001; the Claimant established
and held
seniority and was assigned as a Section. Foreman in the Track
Subeartment. On the date in question, the Claimant was assigned to Gang 4813
working the hours of 10:00 P. M. until 6:30 A.M.
n December 13, 2001, the Claimant arid his
gang reported
for
duty at their
assigned headquarters in Martin ay, Nebraska, at 10:00 P. M. Shortly after their
workday began, the Claimant conducted his daily routine job briefing concerni
safety. t approximately 4:00 . ., the Claimant was contacted by Supervisor S.
Foster regarding a possible broken rail. The Claimant proceeded with his gang to
CP 16 s instructed and patrolled the track between CP 16 and C. The
Claimant secured track and time authority from the Dispatcher, briefe his gang,
and assisted in setting the y-rail section truck on Track o. 2 a16.
However, his permit indicated "Switches- o." It appears that the Claimant had
patrolled the same area a year earlier, but since that time, switches had been
installed. The Claimant informed his gang of the permit, but made no mention of
the status of is authority over switches. The Claimant then instructed the h-rail
driver to et on Track No: at CPW 16 and the Claimant and his gang travele
eastbound. Shortly thereafter, the Dispatcher became aware of vehicle n
the
track without authority and contacted Signal Maintainer Holmquist to infor hi
that track was occupied without proper authority. Hlmuist resn by
informing the Dispatcher that the Claimant's gang as travelin eastbound n
Track . , east of P I . The Dispatcher in turn contacte the Claimant,
verified that his permit read " itches- ," forbidding i fro oci
1 , and ordere i off the track.
Form
1 ar o: 37268
Page
3
3 Docket No. MW-37869
0-3-3- -237
letter dated January , 2002, the Claimant was notified of an Investigation
to "develop the facts and place responsibility, if any, that
while
working as Section
Foreman on ang 4 13, you
allegedly
occupied Main Track Two at CIP 16 on -South
orrill Subdivision with the y-rail section truck without
proper authority within
switch limits at CP 16 on December 142001®" The Claimant was also informed
that these alleged actions indicated possible violations of Union Pacific
'Safety Rule
70.3 and 'Maintenance of ay ides 42.3, 42.4 and 42.4.2. The Investigation took
place
on January 9, 2002®
In a letter dated January 2, 2002, the Claimant was assessed a
Level
(5-day
suspension)
for
his violation of `Union Pacific Safety Rule 70:3 . . and Maintenance.
of
way
Rules 42.3, 42.4 and 42.4.2. . . ."
The Organization claims that the discipline imposed upon the Claimant was
unwarranted, harsh,
and
excessive. The Organization contends that the burden f
proof in discipline matter such as this is on the Carrier; that burden proof
has
not been met. The Organization claims that the Carrier failed to afford the
Claimant a fair and impartial Hearing because the discipline was issued to the
Claimant by an individual other than the Hearing Officer. In addition'. the
Organization claims that the Hearing Officer repeatedly asked leading questions
at
the Hearing and offered testimony in the for of qestions. Further, the
Organization claims that contrary to the Carrier's claim, the Claimant did conduct
n
adequate job briefing with his gang prior to occupying Track o 2. Finally, the
Claimant was unfamiliar with the switch changes at CP 16 and the Carrier ha
failed t provide updated general information. According to the Organization, the
Carrier should now a required to clear the Claimant's record of any mention of the
incident to copenste him for all lost ages, including lost overtime, and to make
him hole for vacation, holidays, and seniority.
Conversely, the Carrier toes the position that it et its burden of roof. The
Claimant as afforded
a
fair an impartial Investigatio in accordance with the
requirements of the Agreement. The Carrier considers the Claimant guilty as
charged. Accordin to the Carrier, a review of the transcript developed- ring the
investigation leaves no doubt that the Claimant violated Union Pacific Safety
Rule
70.3 Maintenance oyides 2.3, 42.4 an 42.4.2:
Form 'I war o: 3726
Page Docket o. -7
04--0-3-237
"Union Pacic Safety Rule 703 - Job Briefing
Use the Job b Brieflng. Process:
efore work begins, when all
persons, including
employees and
contractors, are present: .
After work begins, if persons) arrive who
missed the
original
job briefing.
When changes occur to the work plan. or conditions change:
Each work plan must consider hazards, assign specific
responsibilities, and explain those assignments:
aintenance of ay Rule 42.4.2 Using Track and Time Authori
hen the limits are designated .A CONTROL PIT and the
per
mit includes "SWITCH O," the limits extend only to the signal
governing movement through tat control point. However, when
the track and time permit includes "SWITCH YES," the limits will
include that switch, or those switches, and the track i the direction
lined between absolute signals governing movement through that
control point."
In discipline cases; the oar sits as an appellate forum. e o not weigh the
evidence a ovo. s such, our function is
not
to sustitute our jug t for t
Carrier9sq nor to decide the matter in accord with what e igt
r might not
have
done had it been ours to determine, but to rule upon the question f ether there issubstantial evidence to sustain finding of guilty. If the question is decided in the
affirmative, we are not warranted in disturbing a penalty unless a can- say it
appears fro
the
record that the Carrier's actions ere unjust, unreasonable or
arbitrary, o s to constitute
n.
abuse f the Carrier's discretion. CSee
ec
iii®n Award 7,
it
Division Award 16166.)
For 1 ward .76
Page Docket o. -7 9
0-3-0-3- 7
The Board fads that there was substantial evidence to sustain the Carrier's
osition
in
whole.
We
note that the Carrier
roved
that on December 14, 2001, the
Claimant violated his track authorit3' in violation of Union Pacific Safe Rule 70.3
and
Maintenance of
Way
Rules 42.3, 42.4
and
42.4.2. It is clear that the Claimant
was on
Track o. 2 at CP 16 without a
proper
permit. It was the Claimant's
responsibility to insure that the permit that a received
included
authority over
switches. However, he did
not
o so. This is clear violation
of
the applicable
ides.
Further, a fnd that the Level discipline imposed vas reasonable
and
e
will
hot disturb it.
AWARD
Claim denied.
E
This Board, after
consideration
of the dispute identille above, here orders
that an .A and favorable to te lai ants) not be d.
NATIONAL L JUT
y Order f Third Division
ate t Chicago, Illinois, this 5th y of November.
Form 1
NATIONAL L ADJUSTMENT
BOARD
THIRD DIVISION
ward No. 37269
Docket o. -7
0-3-00-3-619
The Third Division consisted of the regular members
and
in adition Referee
argo . Newman when award was rendered.
PARTIES TO DISPUTE:
STATEMENT F CL
(Brotherhood of Maintenance of Way
Employes
(The Burlington Northern and. Santa Fe Railway Company
( (former Burlington Northern Railroad Company)
"Claim. of the System
Committee
of the Brotherhood that:
(1) Thegreeent was violated when the Carrier assigned outside
forces (Patrick Construction)
to
install trench drains and bank
stabilization work at Mile Post 160.5 near Stanford, Montana
on the Montana Division beginning July 9,199 and continuing
(System File - -628--12-10 F R).
2 The Agreement was further violated when the Carrier failed t
make a good-faith effort traduce the incidence of
subcontracting and increase the
use
of its Maintenance of y
forces as' reqied y Rule 55 and Appendix Y.
(3) The Agreement was further violated hen the clai filed
Vice General Chairman : E. Frank under
date
f August 1,
199 to Carier Representative . L. arenteas not denied
by s. nteau pursuant -to ula shall n
allowed in accordance with ai rule.
(4) s a consequence of the violations referred to in Parts (1), (2)
and/or (3) above, Foreman n G. W. Sinclair, Group 2 Machine
eratOrs . C. Rodriguez, . . Sinclair, J. . Pettier,. L.
Sinclair, . . Johnson, . L. Liuis, Laborers . atacsil
and L® pillar shall each receive an. equal and proportionate