Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42704 Docket No. MW-43253 17-3-NRAB-00003-150493

The Third Division consisted of the regular members and in addition Referee I.

B. Helburn when award was rendered.

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

PARTIES TO DISPUTE: (

(BNSF Railway Company (Former Burlington Northern (Railway Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The discipline [Level S thirty (30) day record suspension and

three (3) year review period] imposed upon Mr. R. Valencia for alleged violation of MWOR 1.6 Conduct and EI 2.1 Purpose of Track Inspection, in connection with charges of alleged '… failure to identify and protect an FRA-deficient tie condition on 5/27/2014 when you inspected via hy-rail the North Lead at Hill Yard and did not protect a location that had only 4 effective ties in a 39-ft. Class 3 track segment in the first 5-degree 30minute curve immediately east of Hill West, which lead to Metra A1324 derailing later that evening at approximately 2320 hours.' was on the basis of unproven charges, arbitrary, capricious, excessive and in violation of the Agreement (System File C-14D040-27/10-14-0316 BNR).

(2) As a consequence of the violation referred to in Part (1) above, the discipline assessed Claimant R. Valencia shall be overturned, his record shall be cleared of the charges leveled against him and he shall be compensated for all wage loss suffered."

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 Carrier asserts that the suspension was proper as the Claimant committed a stand-alone dismissible offense when he ignored relevant Rules, resulting in a derailment. The Conducting Officer's credibility determinations should be accepted.

The Organization insists that there is no substantial evidence of an infraction. The Roadmaster's track measurements were not precise as they were taken after the derailment. The assessment of bad ties was subjective. Between the Claimant's inspection and the derailment, at least30 trains passed without incident. The Carrier did not know how fast the train was going when derailment occurred.

The evidence establishes a number of things that call into question the Carrier's contention that on May 27, 2014 the Claimant failed "to identify and protect an FRA-deficient tie condition . . ." It is a matter of record that defective ties had been marked for replacement approximately two years previously, to be replaced the following summer, but remained unreplaced at the time of the derailment. Thus, the Carrier had notice of the defective ties in the area. Testimony of Division Engineer Ferencak was that the identification of defective ties is not absolutely precise, as he noted that he, the Claimant and Assistant Division Engineer Lopez respectively identified 4, 5 and 3 good ties. The Board does not consider the measurements taken after the derailment as conclusive proof of the track width prior to the derailment since the derailment itself may have impacted track width. Absolutely critical is Roadmaster Horner's testimony that between the time the Claimant inspected the Hill Yard track on the morning of May 27, 2014 and the derailment at approximately 11:30 PM, 30-35 trains had traversed the stretch of track at issue. And, while Roadmaster Horner believed that the derailed train was traveling at a speed of between 20-30 MPH, there is no record evidence to establish train speed at the time it derailed, leaving open the possibility that operational error caused or contributed to the derailment. While Division Engineer Ferencak believes that he heard the Claimant say that he missed the deficient tie condition, the Claimant testified that there were a sufficient number of good ties in the curve with not enough defective ties for remedial action. Moreover, the Claimant had been inspecting this section of track since May 13, 2014 and there is no record evidence of a prior derailment.

All of this evidence combined, if not the single fact that prior to 11:30 PM on May 27, 2014, 30-35 trains had traversed the curve without incident, makes it impossible to conclude with any degree of certainty that the Claimant's alleged failure to identify the FRA-deficient tie condition was responsible for the derailment. Furthermore, there is no showing by substantial evidence that conditions on May 27, 2014 differed from conditions that existed on May 13 and thereafter.

AWARD

Claim sustained.

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 12th day of July 2017.