Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42365 Docket No. MW-42482 16-3-NRAB-00003-140134

The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.

(Brotherhood of Maintenance of Way Employes Division ( IBT Rail Conference

PARTIES TO DISPUTE: (

(BNSF Railway Company (former Burlington ( Railroad Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The discipline [Level S Combined Suspension '*** served as 19

days Actual Suspension as follows: October 15, 2012 through November 02, 2012, and 11 days Record Suspension.' and a one

(1) year review period commencing on November 2, 2012] imposed upon Mr. C. Webster by letter dated November 2, 2012 for alleged violation of MOWOR 11.3 Fouling the Track, MOWOR 11.4 Job Briefings, MOWOR 6.3.1 Main Track Authorization and MOWOR 6.50.5 Hy-Rail Limits Compliance System (HLCS) in connection with his alleged '. . . failure prior to occupying track, to conduct a job safety briefing, request track & time authority and failure to activate HLCS unit on vehicle 17793 with track and time authority at approximately 11:44 hours on Saturday, October 13, 2012 at/or near mile post 8.2 & Donkey Creek Jct, Main Track 1, while assigned as Grinder on gang TRWX1264, headquartered at Gillette, Wyoming. ***' was arbitrary, excessive and in violation of the Agreement (System File C-13-D040-6/10-13-0128 BNR).

(2) The discipline [Level S Combined Suspension '*** served as 19

days Actual Suspension as follows: October 15, 2012 through November 02, 2012, and 11 days Record Suspension.' and a three

(3) year review period commencing on November 2, 2012] imposed upon Mr. P. Gil by letter dated November 2, 2012 for alleged violation of MOWOR 11.3 Fouling the Track, MOWOR 11.4 Job Briefings, MOWOR 6.3.1 Main Track Authorization and MOWOR 6.50.5 Hy-Rail Limits Compliance System (HLCS) in connection with his alleged '. . . failure prior to occupying track, to conduct a job safety briefing, request track & time authority and failure to activate HLCS unit on vehicle 17793 with track and time authority at approximately 11:44 hours on Saturday, October 13, 2012 at/or near mile post 8.2 & Donkey Creek Jct, Main Track 1, while assigned as Welder on gang TRWX1264, headquartered at Gillette, Wyoming.***' was arbitrary, excessive and in violation of the Agreement.

(3) As a consequence of the violation referred to in Part (1) above, the Carrier shall '. . . immediately take the actions necessary to restore the lost pay and benefits suffered. . . ' by Claimant C. Webster.

(4) As a consequence of the violation referred to in Part (2) above,

the Carrier shall '. . . immediately take the actions necessary to restore the lost pay and benefits suffered. . .' by Claimant P. Gil."

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.

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

The Claimants were assigned joint elimination duties on the Orin Subdivision. They went to MP 8.2 and waited 30 minutes for an eastbound train to pass. Claimant Gil called the dispatcher who said the train they were waiting for was inoperative. Gil asked for authority between MP 8.2 and Donkey Creek Jct.

The dispatcher responded with 8.2 to MP 14.7. Gil replied: "That is correct, and Gil's ready to copy main track 1, Mile Post 8.2, no, to Mile Post 14.7, no. Over."

The Claimant worked on the main line without protection. An oncoming train was able to stop 500 feet away. The Carrier determined that the Claimants' failure to understand their authority placed them in danger. The suspensions were issued as a result.

The Claimants admitted their wrongdoing during the Investigation Hearing. Gil acknowledged that he copied down the wrong limits. The Carrier argues the discipline is far from excessive because they did not obtain proper authority, they failed to conduct a job briefing and they did not turn on the HLCS. Those failures resulted in a train being on the track and going into and emergency stop. Due to the seriousness of being on the wrong track, the Carrier asserts the assessment of actual days of suspension was appropriate. The first page of PEPA makes it clear that if warranted, an actual suspension can be imposed. In this case, an 11 day record suspension with 19 days actual was not excessive.

The Organization argues Gil said he thought the HLCS automatically activated, but that was incorrect; there is a switch. The Claimants conducted a job briefing on where they intended to work and what the work would be. They tested the HLCS and notified the Roadmaster immediately about the incident. The employees were young, with less than 10 years' service. Neither employee deserved to lose 19 days. The employees were hurried due to lack of manpower. PEPA provides that a first serious violation will result in a 30-day record suspension. The 19 day actual suspensions were patently excessive.

Gil was the employee who misstated the track authority in his communications with the dispatcher. In addition, he shared responsibility for not turning on the HLCS and not guaranteeing a proper job briefing. PEPA provides for actual suspension when warranted. It cannot be said that under these facts the Carrier lacked substantial support for its choice of discipline.

By contrast, Claimant Webster was not the one to interface with dispatch and did not misstate track authority. Though he shares some responsibility for making sure he was working under proper track authority, it cannot be said that his reliance on Gil to obtain authority was equivalent to misstating that authority and getting it wrong while in direct communication with a dispatcher. His offense was a lesser one in a critical way. Because he had no direct communication with dispatch, he cannot be held accountable for misstatements made during that conversation. Webster's discipline was unjustified because the Carrier failed to take into consideration the totality of the situation.

The claim is sustained in part. As to Claimant Gil, the claim is denied. As to Claimant Webster, the Level S 11-day record suspension and 19-day actual suspension with a one-year review period shall be removed from the Claimant's record, and shall be replaced with a Level S 30-day record suspension with a oneyear review period. He shall be compensated for all time missed due to the excessive penalty.

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 30th day of August 2016.