BNSF RAILWAY COMPANY
(Former ATSF Railway Co.)
Case No. 403 --Award No. 403 (Ventura)
Carrier File No. 14-10-0196
Organization File No. I 50-l3D2-108.CLM
1. The Carrier violated the agreement commencing July 15, ?010, when Claimant, Arturo D. Ventura (6551915`, was issued a Level S 30-clay Record Suspension with 3 year probation. for failure to stay within track limits while hy-railing on June 2, 1010. The Carrier alleged violation of MOWOR 1.6 Conduct.
2. As a consequence of the violation referred to in part I the Carrier shall remove from the Claimant's record this discipline and tae be compensated for his lost time anti expense and otherwise made whole-
Public haw Board No. 5850, upon the whole record arid all the evidence, finds that the parties herein are Carrier and Employees within the meaning of the Railway 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.
Claimant, Arturo Ventura, has been employed by the Carrier since 1995. (7n June 1 4., 2010, the Carrier charged Claimant to attend an investigation to ascertain the facts and determine his responsibility, if any, in connection with his alleged failure to stay within his track and time limits while hy-railing on .Tune 2, 2010! at approximately 1 I Z0 can the; Bakersfield Subdivision and for lacing dishonest in prov iding information following; the incident. Following the investigation, the Carrier found that Claimant had committed the infractions alleged, in violation of Maintenance of Way Operating Rules l .6 Conduct anti 6.3.1 Main Track Authorization. The Carrier issued Claimant a Level S -.,O-day record suspension and a three year review period.
l3fore occupying a main track, controlled siding or any track where C::TC is in eCt°c.ct, employees must have information concerning all track bulletin harm 13's in effect that may overlap their authority. Employees continuing to occupy a main track, controlled siding car any track where Ew;"1'C is in effect after midnight must contact the train dispatcher to obtain any additional Form Ft's that may have been issued.
When requesting authority or establishing protection, the; employee in charge must ensure that equipment and employees do prat occupy or foul the track until authority is received or protection is established. The employee requesting authority must le qualified on these rules and must
On the day of the incident, Claimant was working as a Track Supervisor, hyrailing the main line, with track and time authority on two separate; pieces of track, between Fast and West Angiola, and between West Angiola and Fast Corcoran. Claimant slid not have track and time authority in between these two locations, in an area referenced, but not defined, by the Carrier witnesses at the investigation as the 'Ct." apparently, that was the area in between certain signals and referred to as the "west end of Angiola."
Clarence l-. (Pat) Newell, Roadmaster at Carrier's Bakersfield Subdivision, testified that he was Claimant's immediate supervisor at the time of the incident. He testified that Claimant had track and time authority from NIP 941.05 tee 941.76 car .78. and tl<cn from 942.8 to 949.9. I Ie described the "OS" area as from 942.76 to .8. lle stated that at approximately 1419 hours on the day of the incident, the chief dispatcher paged him to inform him that Claimant had exceeded his limits. An email from the dispatcher ,vas entered into evidence at the investigation, and read as follows:
The record also includes transcripts of twee audio files, both for the carne tinxe period, from 1100 to 1 130 on the date of the incident. Other than referring tea cane recording from a "side phone," and the other as "Avtec," the record does not explain
The first transcript begins at 11:05:01, and shows the recording beginning again at 11 :22 .1M 36 seconds. There is no discussion between the dispatcher and Claimant tmtit just before the second time notation. where the transcript shows the following exchange:
The transcript shows that at 11:22 AM 36 seconds and at 11:23 AM 56 seconds, the dispatcher stated, "BNSF Bakersfield Sub Dispatcher to Ventura, over," but there is no audible response.
The second recording, from the side phone, begins at 11:(10 AM 42 seconds, and then shows a recording beginning at 11:23 AM 33 seconds. There is no conversation between Claimant and the dispatcher, or apparently any converrsation concerning Claimant, in either of these trannscript segmcnts_ At 11:24 AM 35 seconds, the following exchange takes place:
In a recording beginning at 11:27, the dispatcher tells an unidentified third party that she needs to talk about Claimant, who said there had. been a thubwheel error, and that the matter should probably lie investigated.
Mr. Newell testified that after receiving the dispatcher's email he contacted Claimant, who told him that he had never entered the CAS and had been between the sw=itches, between the west end and east end of Angiola. Mr. Newell stated that Claimant told him he slid not go into the C), that is, the crest switch at Angiola. Mr. Newell stated that Claimant maintained that the problem was an error on a system known as hy-rail compliance limits, which has a "thumbwheet" that needs to be set at, for example, MI for rnain track, S for siding, etc. The thumbwheel would need to be clanged to the correct
track. to avoid an error. If the thumbwheel is not set correctly, an "exceeds" alarm sounds, constituting a thumbwheel error. Mr. Newell added that he later spoke to Claimant again, who then told he that he might have gone past the "lbonds," apparently a switch where a siding and main track come together, and into the OS area.
Mr. Newell explained that Claimant slid not haze track and time authority in the area where he passed over the lbonds and went into an OS section, although he had it on either side of the CAS area. Ile explained that the beginning of the OS area teas 942.78, rind the last part of it was 942.85. Mr. Newell further explained that when a vehicle goes into an OS, that does not constitute a thurnbwheel error, but rather is defined as exceeding limits.
Mr. Newell stated that Claimant was required to have positive protection tee enter the OS area. lie acknowledged that authority to enter Form B limits could constitute such authority, and Claimant could have proceeded pursuant to such authority so long as lie followed all applicable rules. However, Mr. Newell testified, even if Claimant ryas protected by track anti tune up to the location at issue, and then was protected by Authority tea enter Form B limits, he would still have been cut of his limits. He did nut explain why this would be so. He also did not explain what, if any.. requirements for proceeding pursuant to Form B had not been followed.
\Ar. Newell testified that Claimant never told him that he had Form B protection, send he believed that Claimant had not been true and honest in his account of the: incident. fie slid acknowledge that Claimant properly followed the procedures to properly notify the dispatcher of a thumb wheel error.
various docuents including downloads which, he explained, shoed the thumbwheel (-,in Claimant's vehicle set to main line, and an exceeds limits alarm for I l :22 :2 1. Ile also testifed that authority to enter Fornt l3 limits could constitute can-track. authority. and
share of a farm B at the location in question, at the tune of the incident. Ile explained that he was providing can-track protection for himself and any workgroups within his Form 13 fin:its. He stated that Claimant had been cleared through his limits, and was under leis protection while between the switches on the main track. fie stated that Claimant received his permission to move through the Form l3 limits prior to entering there. A written statement, signed by Mr. Armbruster and his co-worker illiain Geary, was entered inter evidence at the investigation:
Mr. Geary also testified at the investigation, and confirmed that Claimant was protected by the Form Ft tinder which he and Mr. Armbruster were working that day.
Claimant testified at the investigation that he did not exceed his limits on the day at issue. Ile stated that he used Mr. Armbruster"s Form E3 as his positive protection at the cvcst end of Angiola, at the switch where the Carrier's records shaved him exceeding his limits. He also noted that he had track and time authority on either side of the switch. He stated that his protection in the (S section was the Form T3 provided by Mr, Armbruster, as he did not have his own authority on the wrest end of Angiola. fie stated that he did brief and clear through Mr. Armbruster's limits before he entered then.
Claimant stated that he should have put his III,CS unit can NIA while lie proceeded through Mr. Armbruster's switch and had he done no exceed would have been noted can his vehicle. So, he explained, what had occurred was a thubheel error, and he so informed the dispatcher.
Claimant acknowledged that when Mr. Newell called him a few hours aver the incident he first told him there had been a thumbwheel error, fie also acknowledged that he later told Mr. Newell he might have crossed into the west end of Angiola. He also acknowleded that he did not tell Mfr. Newell he had Form l3 protection. However, Claimant maintained, he did not intend to be dishonest or withhold information. Rather, lie explained, he did not realize until he thought about the situation later that he actually had had protection t the location at issue.
The Carrier's Policy for Employee Performance Accountability (PBPA) provides that an employee involved in a serious incident, as enumerated in the policy's Appendix lei, will receive a 3-day record suspension and may be offered training to correct the underlying behavior. Appendix B lists as serious violations numerous safety infractions as well as bother serious violations" of Carrier rules.
The PEPA provides that a second serious incident within a 36-month review period will subject the employee to dismissal, except that the serious-incident review period will be reduced to 12 months for employees who have completed at least five years' service and who have been injury and discipline-tree for that period. The PEPA also provides that certain aggravated offenses, listed in Appendix C, may subject an employee try dismissal for a. single offense. Those violations include: l) Theft car other act with intent to defraud the carrier of monies or property not due. Claimant's personal record shows a Level S, 30-day record suspension, with a l'-month review period. issued October ?6, ?009 for failure to properly use lookout protection.
f lle Carrier asserts that this ease is not complicated. `simply put, tile Carrier Mates, Claimant was fro a track without proper authority. Moreover, the Carrier points out, the record establishes that Claimant admitted his violation to ltoadmaster Newell. l°urther. the C:rrier notes, Claimant gave three different versions cat what occurred--that the matter involved a thumbwheel error and Claimant was riot outside his limits; that he did in tact exceed his limits; and that he had Form B protection. While, the Carrier states, Claimant maintained that he was nervous and not dishonest, there is no excuse for his laving given multiple versions of what transpired.
into evidence at the investigation, confirms that Claimant had track and time authority at two locations. lout not at the location he was occupying in between those two- The dispatcher's statement, the Carrier states, confirms that Claimant made a request far authority at that location after the dispatcher became aware that it wars lacking. However, the Carrier stresses, authority cannot be requested after the fact. Therefore, the Carrier concludes. Claimant's violation has been proven.
With respect to the penalty, the Carrier asserts that C'laimant's violation vas serious, and could have resulted in catastrophic consequences. The fact that there was no injury, the Carrier stresses, does not absolve Claimant of his culpability. 1 he Carrier notes that since this vas Claimant's second serious violation within 12 months, he vas subject to dismissal under C'arrier's PEPA. Thus, the Carrier concludes, it granted Claimant leniency, and its determination as to the penalty should not be disturbed by this Board.
assessed aaainst Claimant. First, the Organization states that the individual who assessed the discipline prejudged Claimant's guilt from the outset and could neat have rendered an impartial ruling 1bllowinthe investigation. On ills merits, the Organization contends that this case irises from the Carrier's confusion concerning Claimant's use of main track authorization options. Claimant, the Organization contends, made a pro
per transition _i~clrrt Mule I0.Tracy and Time to Rule 15.2 Tracy Bulletin Form i3. The record clearly establishes, the Organization contends, that claimant had Rule 10.3 protection, and when ire reached the end of that authority he contacted the employee in charge of a Form l3 and obtained permission to continue can his track inspection assignment through the Form 14 to the rest of fills track upon which he had authority pursuant to his Rule l t).3 track and time authority. `f-lie record testimony, the Organization states, shows that Claimant was protected on the main track at all tithes. Further, the Organization states, the record shows that the matter involved simply a ",thubwheel error," which Claimant and the dispatcher handled properly ;old in accordance with Carrier rules. Moreover, the Organization points cut, following the incident Claimant recalled some additional f~cts and brought them to the C'arrier's attention, but there is nothing tel indicate that he had been dishonest ~tvs charged by the Carnet. Therefore, the Organization concludes, the Carrier failed to prove its charges against Claimant, and requests that the claim be sustained.
We have carefully reviewed the record in its entirety. First, eve trod no evidence tit any procedural irregularity which denied Claimant his right to a Lair and impartial investip-ation. On the merits, the Carrier bears the burden of proving, by substantial evidence, that Claimant failed to stay within his track and time limits, thereby occupying track without proper authority, and that he was dishonest concerning the incident. We find that the Carrier has failed to meet its burden of proof.
-The record is clear that, as the Carrier asserts, Claimant had track and time authority on two pieces of track. and that he did not have such authority in the area in between, referred to as the OS area on the west end of Angiola. 'The record is also clear. as he acknowledged at the investigation, that Claimant entered that area.
The applicable Carrier rules provide, as the Carrier's witnesses acknowledged at :he investigation, that proper authority to occupy track may be established by track and tine authority and/or authority to enter limits established by a Form l3. The record is clear, from Mr. Armbruster's testimony and the dispatch communications entered into evidence, that Mr. Armbruster was the employee in charge of a Form B at the west end of Angiola, that he briefed with Claimant that the Form B would be leis positive protection in that area, and that he granted the authority prior try Claimant's entering Mr. Arbruster's limits.
he Carrier maintains that Claimant requested authority to enter the OS area only -if he had already exceeded his limits, and it is true that a dispatch communication shows Claimant requesting authority on the west end of Angiola at I I :.24, two minutes
conversation confirming the existence of the Form B authority. Nevertheless, Claimant maintained at the investigation that between his two track arid time authorities and the Form B he was tinder protection at all times. and the Carrier, in its response try the claim. addresses the Form B only to state that Claimant was dishonest because he did not mention it at the time of the incident. While he may not have mentioned it, the record is clear that Claimant in fact did have authority through NIr. Armbruster's Form B at the pest end of :Aaaiola. The Carrier does not address the significance cat that authority to the situation at issue, nor does it explain why it concluded that Claimant had exceeded his limits notwithstanding the existence of the Form E3. The Carrier hears the burden c t making and explaining the record, and its failure to address the Form B in this case causes us to conclude that it has not proven, by substantial evidence, that Claimant exceeded his limits car occupied track without. authority.
,Ns for the charge that Claiant was dishonest, we agree with the Carrier that it vas odd that Claimant never mentioned the Form l3 at the titre of the incident. hlowever, clearly he did trot fabricate the existence of that authority. He had the authority, arid the transcripts and the testimony of Mr. Armbruster demonstrate that he had it prior to his exchange with the:. dispatcher. Can this record, we can conclude only that Claimant vas, as he maintained, confused. and addressed only hiss track and time authority, rather than his track and time authority along with his Form B authority. fho Carrier had reasonable
