Form 1   NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42017

Docket No. MW-41878 14-3-NRAB-00003-120174

The Third Division consisted of the regular members and in addition Referee M. David Vaughn 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 and a three (3) year review period] imposed upon Mr. M. Luther for alleged violation of EI 14.5 Securing Roadway Equipment for Shipment and MOWOR 1.6 Conduct for alleged failure to secure proper permitting for transportation of a Jackson 6700 #X5400361 on November 22, 2010, was arbitrary, capricious, on the basis of unproven charges and in violation of the Agreement (System File C-11-D040-10/10-11-0143 BNR).

As a consequence of the violation referred to in Part (1) above, Claimant M. Luther shall now receive the remedy prescribed by the parties in Rule 40(G).”

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.

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

The Claimant in this dispute is a Truck Driver, with his principal assignment consisting of hauling various items and material in support of the Carrier’s operations. He is covered by the parties’ Agreement and has four years of seniority with the MOW Department. The Claimant’s assigned vehicle at times relevant to the claim at issue was a heavy duty, air-brake equipped truck, which was equipped to tow a heavy-duty, low boy trailer.

On November 22, 2010, the Claimant was assigned to transport a Jackson 6700 ballast tamper from Bristol, Illinois, to Logistics Park, Chicago, Illinois. When the Claimant was preparing for his assignment, he met with the tamper’s Machine Operator, a Mechanic and another Truck Driver; they prepared, loaded and secured the tamper. The Claimant was responsible for inspecting the load for security, for placarding the load and for complying with the Carrier’s Rules.

The load required special permits. The Carrier uses an outside company to track the intended route for special loads and obtain appropriate permits from appropriate governmental entities to authorize movement of the load through their respective jurisdictions. The Claimant received the package of permits from the Carrier. He did not independently check the permits to ensure that they were proper and complete prior to embarking on his trip.

While the Claimant was driving to Logistics Park, he turned right onto Walter Strong Drive (State Route 53). When he did so, the light cart (the light assembly that goes ahead of and controls the Jackson 6700 and uses lasers and other lights to gauge height if the track is being raised for any surface deviations both vertically and horizontally) fell off of the trailer. The Claimant immediately pulled over to assess the situation and determined that the cart, which is typically secured to the front of the tamper during transit, had come loose because the flip bar that holds the two machines together had come loose. The Claimant contacted the Carrier and informed supervision that the light cart had fallen off of the trailer and sustained damage.

Based on the damage, the Carrier concluded that the lighting assembly had been dragged for several hundred yards. The connecting cables between the Jackson 6700 and the light cart had been torn out and two of the connecting bars were bent. In addition, the laser attached to the top of the light cart was missing. The total damage to the light cart was approximately $58,000.00. The City of Elwood police, who arrived and took the Claimant and the lowboy to a nearby weigh station, cited him for nine separate violations, including lacking the proper weight permit to transit Elwood,

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Illinois, and for negligently allowing his load to spill onto the roadway. The police assessed the Claimant fines totaling $17,780.00. Subsequently, the Claimant submitted to a Carrier drug and alcohol screen, which was negative.

A formal Investigation was conducted at which the above facts were adduced. Based on the record, the Carrier found the Claimant in violation of EI 14.5 (Securing Roadway Equipment for Shipment) and MOWOR 1.6 (Conduct). It assessed the Claimant a Level S 30-day record suspension and a three-year review period.

The Carrier argues that it met its burden to show that the Claimant’s violation of the cited Rules and the penalty assessed was appropriate. The Carrier contends that it is obligated to provide and maintain a safe workplace and that its employees must follow the Rules put in place for their own safety and well-being. It asserts that the essential facts are not in dispute and the evidence presented at the Investigation makes clear that the Claimant failed to carry his burden and, instead, chose to disregard the Rules. The Carrier further contends that it is the Truck Driver’s responsibility to verify the accuracy of the permits. Moreover, the Claimant admitted that when he made the trip at issue, he did not have all the necessary permits needed for the trip and that it was his responsibility to obtain all required permits. It contends that the cause of the light cart falling off of the lowboy trailer was that the retaining pin that secured the restraining bar was not put in place and that the Claimant admitted that he was ultimately responsible for the load he was hauling. It asserts that the Organization does not dispute these essential facts and the Claimant’s admissions.

The Carrier further contends that the Organization’s various arguments alleging procedural defects and its attempts to shift the blame to Trans Mid America for not giving the Claimant all the necessary permits in order to make the trip are without merit. As to the latter, the Carrier contends that the Conducting Officer is charged with assessing conflicting positions and making credibility decisions and that arbitral Boards must defer to such determinations by Conducting Officers. It asserts that there is no corroborative testimony or evidence that absolves the Claimant from his offenses. As for the former, it contends that the Claimant admitted guilt and that such admission renders moot all of the Organization’s procedural arguments.

Finally, the Carrier argues that the discipline imposed was appropriate to the offense. It contends that the Claimant’s misconduct was a “serious” offense under PEPA. It asserts that, essentially, the Organization is asking for leniency for the Claimant but that, in discipline cases, the Board is not empowered to substitute its judgment for that of the Carrier.

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Conversely, the Organization argues that the Carrier (1) failed to meet its burden of proof, (2) failed to afford the Claimant a fair and impartial Investigation and (3) imposed an unwarranted, harsh and excessive penalty. As to the Investigation, the Organization contends that the Conducting Officer engaged in improper and inappropriate actions and behavior and that his overall handling of the dispute denied the Claimant the fair and impartial Hearing he was due and requires that the claim be sustained.

As to the charges themselves, the Organization argues that it is impossible to know what section of MOWOR 1.6 (which contains seven distinct categories) the Claimant allegedly violated – whether his alleged violation was failing to properly secure the tamper or whether it was his reliance on Trans Mid America’s route and permits. In any case, it asserts that the evidence establishes that the Claimant contacted Trans Mid America and was provided with a specific route to follow and what he believed to be all associated permits; on the date of the accident, the Claimant and the other employees, including the tamper’s Machine Operator, loaded and secured the machine onto the Claimant’s lowboy; the Machine Operator was traditionally responsible for ensuring the light cart was secured to the tamper whereas Truck Drivers, such as the Claimant, would ensure the tamper itself was properly lashed down; these employees secured the tamper as they had been trained to and done in the past. It points out that there is no record evidence that the light cart was not properly secured when the Claimant departed; the light cart did not fall off until after the Claimant had traveled a substantial distance. It maintains that the Carrier never linked an act or omission on the part of the Claimant to the light cart falling off. And other than stating that the Claimant was driving the truck when the cart fell off, the Organization contends that the Carrier never established how the Claimant was negligent or careless of the safety of others. It points out that the Carrier never rebutted the fact that it had directed its employees to rely on the routes and permits provided by Trans Mid America; and the evidence of record shows that the Claimant performed his assigned duties on the date in question in accordance with all Rules and regulations.

Finally, the Organization argues that, even accepting the Carrier’s position that the Claimant violated its Rules, the discipline assessed was arbitrary, capricious and unwarranted and, therefore, in violation of the Agreement. It maintains that the Claimant (1) was a hard-working employee with no history of discipline, (2) believed the tamper was properly secured and ready for transport and (3) believed that he possessed the proper documentation. It contends that there is no evidence to justify a 30-day record suspension coupled with a three-year review period.

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It goes without saying that it was the burden of the Carrier to prove the Claimant’s violation of the Rules cited by substantial evidence, considered on the record as a whole and, when challenged, to establish that the penalty was not arbitrary or excessive. Conversely, it was the burden of the Organization to establish that the Carrier failed to provide the fair and impartial Hearing and Agreement due process to which the Claimant was entitled. For the reasons which follow, the Board is persuaded that (1) the Carrier did not violate its obligations to provide contractual due process and a fair and impartial Hearing, and (2) the Claimant is guilty of violating some, but not all, of the Rules cited.

With respect to the Organization’s procedural objections, the Board rejects the Carrier’s argument that the Claimant “admitted” his guilt and the Carrier’s arguments based thereon. However, the Board is not convinced that the procedural deficiencies cited warrant overturning the discipline.

The Board is not convinced that the Claimant acted improperly in relying on the appropriateness and completeness of the permits provided to him by the Carrier’s outside agent. He was provided with the permits and was entitled to rely on them. Neither is the Board persuaded that the Claimant was responsible to avoid an overweight load; he was assigned the load and instructed to transport it. He should not be held responsible for the failures of Management’s contractor to ensure proper permits or to ensure that the load he was assigned by Management was within proper weight limits.

The Claimant was, however, responsible to ensure that the load he was transporting was properly secured. Self-evidently, it was not – else the load would not have fallen off of the trailer. The fact that the employees assigned to the tamper worked to prepare it for transport does not absolve the Claimant of his obligation to ensure the security of the load.

The Claimant having been absolved of responsibility for the permit and the overweight violations – leaving in place only his failure to secure the load – the Board is persuaded that the assessment of a 30-day record suspension under PEPA was arbitrary and excessive. Leniency is appropriate if the violations are proven and the penalty is appropriate, but a reduction is nevertheless sought. In such situations, any reduction would be granted by the Carrier in its discretion. However, in the instant case, the elimination of several of the charges against the Claimant renders the penalty inappropriate and makes the Board’s task one of mitigation, not leniency.

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In the final analysis, the Claimant is guilty of certain of the charges as described above and is absolved from certain other charges. The Claimant’s failure to properly secure his load still constituted a serious violation under PEPA. However, in light of the reduced number and scope of violations, the penalty assessed shall be reduced to a 15-day record suspension coupled with a probationary period proportional to the length of the suspension. The Claimant’s records shall be amended so to reflect.

AWARD

Claim sustained 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 make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 28th day of August 2014.