Form 1   NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 41882

Docket No. MW-41990 14-3-NRAB-00003-120257

The Third Division consisted of the regular members and in addition Referee William R. Miller when award was rendered.

(Brotherhood of Maintenance of Way Employes Division -

( IBT Rail Conference

PARTIES TO DISPUTE: (

(BNSF Railway Company (former Burlington

( Northern Railroad Company)

STATEMENT OF CLAIM:

“Claim of the System Committee of the Brotherhood that:

The discipline [Level S thirty (30) day record suspension, six (6) month prohibition from operating a machine or running a boom on a truck and a three (3) year review period] imposed upon Mr. E. Curl by letter dated June 9, 2011 for alleged violation of MOWOR 1.6 Conduct in connection with an alleged 5 critical decision violation at approximately 1025 hours on April 1, 2011 near Barstow, Illinois on Highway 5 when the boom of the truck he was operating came in contact with an overhead sign was arbitrary, unwarranted and in violation of the Agreement (System File C-11-D040-25/10-11-0430 BNR).

As a consequence of the violation referred to in Part (1) above, the aforesaid discipline imposed upon Claimant E. Curl shall now be overturned and removed from his personal record.”

FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

Form 1   Award No. 41882

Page 2   Docket No. MW-41990

14-3-NRAB-00003-120257

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.

Parties to said dispute were given due notice of hearing thereon.

On April 1, 2011, the Claimant was working as a Section Foreman near Barstow, Illinois, on Highway 5 when he was required to drive a truck and operate a boom because the crew was short a Truck Driver. While operating the truck, the boom clipped an overhead highway sign, and because of that, charges were brought against the Claimant.

On April 6, 2011, the Carrier directed the Claimant to report for a formal Investigation on April 14, which was mutually postponed until May 18, 2011, concerning, in pertinent part, the following charge:

“. . . for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged 5 critical decisions violation at approximately 1025 hours on April 1, 2011 near Barstow, Ill. on Hwy 5, when the boom on [the] boom truck you were operating came in contact with an overhead sign causing damage to the boom and the highway sign, while assigned as Section Foreman at Barstow, Ill.”

On June 9, 2011, the Claimant was notified that he had been found guilty as charged and was assessed a Level S 30-Day Record Suspension with a three-year Review Period. Additionally, it prohibited the Claimant from operating a machine or running a boom on a truck for six months, and during that time, he was required to complete both training from ARI on boom truck handling and the Machine Operator's recertification test.

It is the position of the Organization that the Claimant was denied a “fair and impartial” Investigation because the Carrier prejudged the case and the Hearing

Form 1   Award No. 41882

Page 3   Docket No. MW-41990

14-3-NRAB-00003-120257

Officer engaged in ex parte communication with the Carrier Charging Officer/witness regarding the case prior to the Investigation being held, which is contrary to the Carrier's obligation to hold a fair Hearing. It asks that based upon that procedural error, the discipline should be set aside without reviewing the merits because the Hearing was unfair and the transcript was tainted.

Turning to the merits, the Organization did not deny the fact that the boom on the truck that the Claimant was driving struck the overhead sign, but instead argued that the Carrier was complicit in this incident because it did not have the boom alarm repaired when it knew that it was not working. Stated differently, if the alarm had been working the Claimant would have been alerted to the fact that the boom was not fully secured. It also pointed out that the Carrier arranged for the Claimant to be effectively working “out of position,” because his consist was short its customary Truck Driver, which required the Claimant to perform truck driving duties in addition to his regular Foreman duties, and because of those collective errors by the Carrier and the mitigating circumstances, the Organization requested that the discipline be set aside and the claim sustained as presented.

It is the Carrier's position that there were no procedural errors in the handling of the Claimant's case and the Organization has not shown that it did anything that prejudiced the Claimant's contractual rights. It requested that the case be resolved on the merits of the dispute.

Turning to the record, the Carrier asserted that the evidence shows that on the date of the incident there is no dispute that the Claimant was driving a truck with a boom that struck an overhead sign. It argued that a review of the transcript reveals that the Claimant was asked if he violated MOWOR 1.6 and he testified that he did not comply with the Rule. Therefore, with a clear admission of guilt, it appropriately disciplined the Claimant. The Carrier further argued that it was lenient in its assessment of discipline because this was the Claimant's second serious offense committed within the applicable review period and that made him subject to dismissal, which it chose not to assess. It closed by asking that the discipline not be disturbed and the claim remain denied.

The Board thoroughly reviewed the record of evidence and will first address the Organization's procedural argument. Although the Organization asserted that

Form 1   Award No. 41882

Page 4   Docket No. MW-41990

14-3-NRAB-00003-120257

the Hearing Officer conspired and orchestrated the testimony of a Carrier witness, it presented no evidence to substantiate that allegation. We note that during the Hearing the Organization did not make any objection to the testimony in question. Thus, the Organization's argument is not persuasive. None of its other procedural arguments were found to have substantive merit. In the final analysis, the Board finds that the Claimant was afforded his “due process” Agreement rights.

As stated above, the facts in this case are not in dispute. On April 1, 2011, the Claimant was working as a Section Foreman and had been operating the boom on his Company truck to load rail. After completing that task, the Claimant did not properly stow the boom on his truck, and with the boom not properly stowed, the truck's boom subsequently struck an overhead highway sign. Damage occurred to both the sign and the boom. During the Investigation, the Claimant testified that he got distracted and did not properly stow the boom. He further testified that the boom was functional and there was nothing mechanically wrong that prevented it from being stowed. The Claimant was specifically asked the following:

“Michael Heille: And the only reason that wasn't stowed, was because you forgot to stow it?

Eddie E. Curl: Yes.” (Emphasis added.)

The Claimant subsequently testified that he was not in compliance with MOWOR 1.6 on April 1.

In his defense the Organization argued that the Claimant was distracted by the Roadmaster and the Train Dispatcher and was also required by the Carrier to drive the truck because his crew was short a Truck Driver, and that combined with the defective alarm on the boom contributed to the incident. It argued that the collective errors of the Carrier coupled with the mitigating circumstance made the assessed penalty excessive.

Despite the vigorous defense of the Claimant by the Organization, it cannot overcome the fact that as a Foreman the Claimant was required to work with the Roadmaster and the Train Dispatcher on a daily basis and should not have allowed his work with those individuals to distract his attention to safety on the date of the

Form 1   Award No. 41882

Page 5   Docket No. MW-41990

14-3-NRAB-00003-120257

incident. The record further shows that the Claimant was a working Foreman; therefore, operating the truck was not the norm, but it was not unusual and the fact that the alarm did not sound does not negate the fact that the Claimant did not properly stow the boom. The Board does not dispute that the Claimant was busy on April 1, 2011, but the Organization’s arguments for mitigation are not persuasive. Substantial evidence was adduced at the Investigation to warrant the conclusion that the Carrier met its burden of proof that the Claimant was guilty as charged.

The only issue is whether the discipline was appropriate. At the time of the incident, the Claimant had approximately three years of service and was on a 36month probation period for a previous Level S Record Suspension for failure to maintain a safe braking distance resulting in a machine collision. The instant offense was of a serious nature. Therefore, the Board finds and holds that the discipline will not be disturbed because it was neither contrary to the Carrier's Policy for Employee Performance Accountability (PEPA), nor was it arbitrary, excessive or capricious.

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 16th day of June 2014.