Form 1                 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43883 Docket No. SG-45221 20-3-NRAB-00003-180708

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

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(BNSF Railway Company

STATEMENT OF CLAIM:

“Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the BNSF Railway Company:

Claim on behalf of P.J. Benton, for reinstatement to service with compensation for all time lost, including overtime pay, with all rights and benefits unimpaired, and with any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 54, when it issued the harsh and excessive discipline of dismissal against the Claimant, without providing a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on July 20, 2017. Carrier's File No. 35-17-0034. General Chairman's File No. 17-058-BNSF-188-SP. BRS File Case No. 15872-BNSF. NMB Code No. 173."

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.

On June 14, 2017, the Claimant was the Signal Foreman of gang SSCX0113 in Tacoma, Washington. He was the employee in charge, and his workgroup drew their authority from Form B 6741. The Carrier determined that the Claimant released his authority, then fouled main track 2 with his backhoe. At the investigation, three of the Claimant's co-workers testified and wrote statements confirming that the Claimant reported clear of Form B 6741 in order to let an approaching train pass and to prepare for ending the work day. Since this was his second Level S violation during an active review period, he was dismissed.

The Organization accuses BNSF of hiding or withholding exculpatory evidence by failing to provide a statement from Signalman Paul Amerson, who, it asserts, was right next to the Claimant’s backhoe at the time. The Organization “finds it rather conspicuous the witness the Carrier chose not to produce was the very employee working directly beside the Claimant at the time of the alleged incident.” It also argues that the fouling was incidental in nature; one witness estimated the fouling lasted only three to four minutes (TR 16), while another calculated 30-45 seconds (TR 37). In the Organization’s view, this incidental fouling fell within a recognized exception to the applicable rule. It notes that MWOR 11.3 states, “Each roadway worker is responsible for determining that on-track safety is provided before fouling any track, except when fouling the track is incidental to the performance of duties.”

The Carrier counters that Signal Supervisor Gregory Martin asked all the witnesses to provide a statement and Amerson was the only one who failed to do so. It pointsoutthatMWOR11.3definesincidentalfoulingandarguestheClaimant’sactions did not fall within that definition. The rule states as follows in pertinent part:

“Incidental Fouling

When a roadway worker fouls a track incidental to the performance of duties, such as when walking across or adjacent to a track on which authority or protection has not been provided, each worker must:

1.    Assume individual responsibility to make the move safely.

2.    Foul the track only after determining that it is safe to do so.

3.      Not carry tools or material that restrict motion, sight, hearing or prevent rapid movement away from an approaching train or other on-track equipment while being carried.

4.    Move directly and promptly to a position clear of the track.”

The Board does not find prejudicial procedural error in this case. There was no factual dispute regarding whether the track was fouled.

We are persuaded by the Carrier’s argument that the incidental fouling exception does not envision the placement of heavy equipment foul of the track. If employees carrying tools or materials that restrict motion, sight or hearing cannot be involved in incidental fouling, how can an employee driving a backhoe be deemed more agile? Being in the driver’s seat of heavy equipment would certainly prevent rapid movement away from an approaching train, as least as much as an armload of tools. The ability to escape rapidly is a criterion under subsection 3 which was not met. As a result, we find the track was fouled in violation of Rule 11.6; this finding is not tied to whether the Claimant’s backhoe was there 30 seconds or four minutes. It follows that testimony from a third witness on this point could not have altered the result, and the absence of such testimony was not prejudicial to the presentation of the case.

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 28th day of January 2020.