BNSF RAILWAY COMPANY
("Former St. Louis--San Francisco Railway Co.)
Case No. 39'7 - Award No. 397 - Schrader
Carrier File No. I4-I(-0197
OrLianization File o. 0-13Ni-1092.CLM
Public Law Board No. 5850, upon the whole record and all the evidence, tinds that the parties herein are Carrier and Employees within the meaning of the Raitw~ly Labor .pct, as amended: that the Board has jurisdiction over the dispute herein: and that the parties to the dispute were given due notice of the hearing and did participate therein.
The Ciirnant. D.D. Schrader, has been employed by the Carrier since 1974. Can September 27, 2010, the: Carrier, by letter; notifed Claimant that he had been dismissed for iris failure, can September 9, ?010 tit Dougherty, Oklahoma, to properly protect en end equipment by releasing the track authority upon which he was occupyin. hhe letter
stated that it had been determined that Claimant was in violation of Maintenance of Way Operating Rule 6.3.1 - Train Location. Can October 6, 2010, the Carrier notified Claimant that he was to attend a formal investigation in connection with this matter. Following the investigation, on October ?6; 2010, the Carrier, by letter, notified Claimant that as a result of the investigation he had teen found to have violated applicable Carrier rules as alleged. The Carrier assessed Claimant a Level S 30-clay actual unpaid suspension with a three-year review period. `1 'he letter stated that the disciplieecision reflected the unique circumstances of the case and had been made solely as a matter of
Claimant's personnel record and had assessed the discipline in accordance with its Policy for Eployee Performance and Accountability (PEPS.).
Maintenance cat Way Operating Rule 6.3.1, Main Track Authorization, provides, ire relevant part:
aced ytewhih works in conjunction with the smart mobile client as a safety overlay to warn eznplayees if there is an issue asto their track authority.
Mr. Blackwell testified at the investigation that on this territory employees are required to have track mid time authority, to allow employees to perform work on the
striking the employees. If the authority is released, he explained, there is nothing to protect employees on the track
authority. ready to transition to the next. the practice, Mr, Blackwell explained, would ?-a to release the previous authority when they entered the next one:.
However. \4r. Blackwell testified, Claimant released the authority they were occupying before they entered the next one. Ile stated that he only realized this had occurred when he looked down anti saw a reel light going off :rd the t-4PS system indicating that they were cut of their limits. Mr. Blackwell stated that when the alarms started flit offP aaimant immediately set off the track at the nearest crossing, anti there was rte injury car other adverse incident. Ile stated that they were very close to the next authority- when Claimant released the previous one, -and actually traveled into that authority to get « ff the track. Mr. Blackwell added that he and Claimant hart not briefed and he was not aware of what Claimant was going to do,
Claiant admitted at the investigation that he released authority tf>r the section they -were occupying bofore they were actually off that section of ~traek. Ile also ;cknowledged that he 'teas experienced on that track and with the track authority svsterils, and stated that lie; simply made a mistake. Ile explained that he "got mixed up" about his limits and thought he was outside the first limits when he released that authority, He
the switch in front of him. Fie added that this was the first time such a thing had occurred itt the 10 years lie had been workinon this territory.
The Carrier's Policy for Fmployee Performance Accountability (PEPA), provides that an employee involved in a serious incidents as enumerated in the, policy's Appendix l3, will receive a 30-clay record suspension and may be offered training tea correct the underlying behavior. -~ppendix I3 lists as serious violations numerous safety infractions. The PFl'A provides that a second serious incident within a 3h-month review period will subject the employee to dismissal. l'he policy also states that the circumstances surrounding a serious incident may reduce aft employ=ee`s personal lpability, and the matter may he handled according to the general guidelines, and if there is any doubt supervisors are to err on the side of leniency. Claimant's discipline record shows a Level S. .30-day record suspension with a I2-month probation period, issued March I, '10, fir inappropriate comments made to a co-worker.
The Carrier first asserts that Claimant received a fair anti impartial investigation zid there vas rte procedural violation of the Agreement, contrary to the Organization"s art,uments. as it complied with Rule 91. Moreover. the Carrier states. Claimant's ~arspension did not commence on September 8, 2010, as the Organization asserts lout on September 29, 201 0. and then continued until his return to work on October 28, 2010,
(fin the merits, the Carrier asserts that this case: is not complicated and it has clearly tnet its burden cat` roving; Claimant's guilt by substantial evidence. The record conclusively demonstrates. the Carrier :;fates, that Claimant was on a track without the proper track authority from the dispatcher, and that he became con rused and released the wrong track. ltrcfeed. the Carrier points out, Claimant admitted as much, ;as fie a.cicrtowleded that he made: a mistake anti have up authority can track lie was sitrint! on.
,ccause he was "confused can Ibis) limits." The Carrier notes that various arbitration boards in this industry have held that an admission satisfies the Carrier's burden of proA no further proof is needed, and the only question is the degree of discipline. Therefore, the Carrier states. there can lie no doubt that Claimant violated Carrier rules.
With respect to the penalty assessed, the Carrier urges that the gravity of the situation cannot lie overstated. The Carrier notes that its rules are in place to protect its cmplovees, and employees must comply in order to protect themselves and their co w=orkers. The fortunate fact that there was no injury in this situation, the Carrier states, does not relieve Claimant (if his responsibility. The Carrier notes that Claimant received a level S violation earlier in 2010, and the discipline in this ease was assessed in accordance with the fFPA, with consideration given to Claiant's personal record. F«r :zll of these reasons, the Carrier urges that the claim be denied.
t°lte Organization raises procedural and substantive challenges to the discipline assessed against Claimant. First, the Organization notes that the Carrier determined that Claimant vas guilty of the charges and dismissed him before any investigation eras held to determine the facts of this matter. The Organization contends that it was impossible "or him to receive a fair and impartial hearing under these circumstances.
Eon the merits, the Organization states that Claimant became confused and believed that his track authority for the second track segment started behind him and released the first authority. The Organization notes that an alarm was immediately received in the vehicle which notified Claimant that there was ate issue with on-track protection. and Claimant's vehicle immediately crossed over a switch into the current tbcaUtoritv.
Claimant, the Oraniation stresses, accepted full responsibility for the incident. Mid rte one was in danger. The Organization urges that Claimant committed no fagrant rules violation, and notes that his supervisor, who was in the vehicle .with him, received no discipline.
With respect to the penalty, the Organization states that the instant situation involves a performance rather than behavioral issue. The Organization asserts that progressive discipline is intended tea deal with the latter situation. but for a performance issue such as this one the more appropriate method of correction would be nondisciplin:rry action. such as coaching counseling or training. The Organization points cut that the Claimant leas 37 years' seniority, with the only discipline can his re=cord during the last ICI a -minor blemish" for which he accepted full responsibility. In addition, the itrganization asserts, Claimant did not return to service until October ?8, 2010, and was of more than the ail days assessed in the Carrier's October 26 letter. The Organization concludes that the Carrier has tailed to produce evidence in support of its charges and, even it' it had, the discipline assessed is extreme and unwarranted as Claimant comitte
no flagrant violation of any Carrie=r rules. The Organization requests that the claim lie sustained.
We have carefully reviewed the record in its entirety. First, we find no procedural irregularity that denied Claimant his right to a fair and impartial investigation. Eon the merits, the rule at issue is a serious one, intended to safeguard the safety of employees Norking on tracks by ensuring that they do not occupy track witout authority. "While his conduct was inadvertent, there is no question that Claimant violated this rule, he admitted, and this admission is sufficient to satisfy the Carrier's barden of proof. The fact that the Carrier has multiple layers of protection in place does not excuse C'laimant's failure to provide one of them. He failed to do so, and this constitutes just cause for discipline.
The Oranization objects that this incident cannot be just cause to discipline Claimant if it is not also cause to discipline Roadmaster Blackwell, .who vas present in the vehicle with him. The Roadmaster had no opportunity to prevent the violation, and had no role in causing it. Blackwell, having played no role whatsoever, cannot be subject to discipline merely by his presence. Thus, the tact that he was not disciplined has no relevance to the discipline assessed against Claimant.
With respect to the penalty, this was, the Carrier points out, C'laimant's second serious violation within a review period, and, under the PEPA, could have subjected him
proportionality of the penalty might have more weight. However, the Carrier did not dismiss him. t exercised leniency, and in so doing brought the penalty into greater conformance with the actual conduct and Claimant's history. The Board is hard pressed to attempt the line drawing exercise between riot quite enough leniency and just enough leniency, particularly given the well settled principle that leniency is the province of the Carrier. Given Claimant's potential exposure under tire rules, we canot say that the harrier's decision to impose a 30-day actual suspension with a three-year review period
Finally, the Organization asserts that Claiant served more than the all day suspension assessed, and must be made whole fear his tune off in excess of the penalty. The Oranization states that he went without pay from September through October 28. Certainly Claimant cannot be made to serve more than the suspension imposed, but the record does not conclusively establish that he did. Specifically, the notice of suspension imposes a suspension from September 27 through Octobcr 2with rdit for time already served. The Personnel Activity Tracking System shows Claimant in service on September 27 and 28, arid returning to service on October '%. Beyond that, there is no evidence concerning the actual time off resulting Pram this incident. The record evidence before the Board is not sufficient to say that Claimant lost time outside of the period of his suspension. If the Carrier's personnel records demonstrate that a did lose such time, e is entitled to be made whole for it. Accordingly, we have ordered that he be made whole for lost tithe, if any, in excess of the thirty clay suspension imposed by the: Carrier.
Claim denied, except to the extent that Claimant is entitled to tie made whole for lost
tune, if any, in excess of the suspension imposed by the Carrier.
