BROTHERHOOD ()F MAINTENANCE OF WAY
 EMPLOYES DIVISION - IBT RAIL CONFERENCE

 vs

 13NSF RAILWAY COMPANY



S'T'ATEMENT OF CLAIM:







FINDINGS:

 Public: Caw Board o. 7048, upon the whole record and all the evidence. finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor tact, as amended; and that the Board has jurisdiction over the dispute herein: and that the parties to the dispute have participated in accordance to the Agreement that established the Board.

 On June 18, 201 0, Claimant was directed to attend a formal Investigation along w=ith two other principals (l3. B. Carlisle. Machine Operator anti J. D. Papenfuhs, Foreman) on July 13, 201 0, which was mutually postponed until July 2'7, 20 110. concernin{3 in pertinent pant tire following charge:
1'.11..13. No. 704$
 Award No. 65, Case No. 65
 Page 2
collided with BNSli Scrap Crane 4600319 at MP 228.1, Bridge St. crossing, Mulvane, KS, on the Ark City Subdivision, at approximately 1400 hours, .Tune 15, 2010.
This investigation will determine possible violation of MOWOR 6.5(), MOWOR 6.51. MOWOR 2.11, MOWSR S-12.8, MOWSR S.12.ti.1, E1 1.1.9, Et 1.13.8, and El 1.13.11, ·'

 On August 24, 20 10, Claimant was notified that he had been found guilty of violating MOWOR '2.0, MOWSR S-12.8 and MtJWSR S-I?.8.1 and was assessed a Level S ;(> Day Record Suspension with a three year probationary period.

 There is no dispute between the parties that on June 15, 2010, the three charged employees were working on the RP 17 Clang w=hen an accident occurred. J. Papcnfuhs, was the acting Foreman, hJ. Carlisle was the Operator of the Scrap Crane anti the Claimant waves the Relief Operator. Claimant was instructed to move a Carrier pick-up truck which subsequently had a collision with the crane operated by Carlisle both of whom were under the supervision ol~ 1'apentuhs.

 It is the Organization's position that the Carrier did not meet its burden of proof. It argued the Claimant volunteered tea move the pilot's one-halfton pickup to the tie-up location and the pickup (which the Claimant did not park) was parked in an improper location where visibility ,vas limited and n o flagger vas provided for that movement. It argued that Claimant complied with those Rules he was alleged to have violated and tollowed the directives of the acting Foreman. It concluded he had no fault in the accident and it requested that the discipline be rescinded and the claim be sustained as presented.

 It is the position of the Carrier that Foreman Papenfulhs instructed Crane Operator Carlisle via radio to move his crane through the crossing and contrary t« the Claimant's version of the incident the Foreman was not talking tot the Claimant nor did he give him mission to move the pickup. It further asserted the facts indicate the Claimant did not follow the Rules tbr backing a vehicle when you cannot see account of an obstruction which in this instance was vegetation and a signal house, but instead backed tip and ran into the scrap crane that had started moving through the crossing. It closed by asking that the discipline not he disturbed.

 ha:, thoroughly reviewed the transcript and record ofevidenee and has

 dctennined that the Investigation was held in compliance with Rule I _}(a) the Discipline Rule and Appendix No. t 1.



Review= of' the record reveals that on page 29 of the Transcript. foreman Pa penfuhs was questioned about whether car not he had given the Claimant instructions ran moving the pick-up. That questioning w=ent as tollows:

    "Robert Emmons: Obviously at some point Mr. Willard got into his vehicle. Did you have any discussion with him prior, prior to that or after he got into his vehicle?


      Jeremy t). Papcnfuhs: No, sir. A flagging man had dropped him off.


      Robert Emmons: So the van dropped him off from what you understand and he got in the vehicle?


      Jeremy i). I'apenfuhs: Yes, sir.


      Robert Emmons: And you did not in any way discuss with him what his movement would be`.'


      Jeremy I). Papenfuhs: No.


      Robert Emmons: Had you had any radio conversations with him that would have made him assume you were talking to him and not the scrap crane?


      Jeremy D. Papenfuhs: No, sir." (Underlining Hoards emplzusis)


On page fi of the Transcript, the Claimant was asked t« otkr his rendition of the incident which he explained as follows:

    "Willard Hudson: Okay. The front half of the machines, machines were done with their work and we had rail traveled them to tie up location in Conway. Assistant Foreman Decosta had gathered up the machine operators from the front half to go back and flag crossings. When we got to Bridge Street Crossing he said we don't need to flag it, but i need someone to move the pickup. First two guys he asked said no. Then 1 got out to do it. Cot in the truck. Foreman Papenfuhs asked me what the mileage marker on the signal box in front of the truck said and I told him the mile marker. Started to back up and heard him over the radio say after this black car crosses the crossing you're good to go and at that time it was crossing. So turned over my right shoulder cause there was a crew coming; up at the crossing on that side and started backing up and the machine and truck I was in got together prior to me being able to acknowledge communication."

                                  P.L.B. No. ?048

                                  Award No. 65, Case No. 65

                                  Page 4


      The questioning of the Claimant continued as follows:


    "Robert Emmons: You mentioned that you had talked to him about where the mileage marker was. flow did you have this conversation`'


      Willard Hudson: On the radio.


      Robert Emmons: And is it your understanding you had a radio conversation and then you heard hire say after this black vehicle you're good to go. Is it your understanding he was speaking to you''


      Willard Hudson: On the radio transmission he said my name.


      Robert Emmons: What were your instructions? You were told to move this vehicle''


      Willard Hudson: To cur tire up location in Conway. (Ci'mierlining Bourcl''v emphasis)


After listening to the contradictory version of the same incident the Hearing Officer recalled Foreman Papenfuhs who reiterated on page 40 ofthe Transcript that he recalled no conversation can the radio with the Claimant wherein he was instructed on his movements. lf`no additional testimony had been provided we would be faced with irreconcilable differences as to what transpired and a stalemate. However, that it not the case in this instance as the questioning of Crane Operator Carlisle sheds a light and confirmation can cane of the aforementioned testimonies. ()n page ? 1 of the Transcript, Carlisle vas asked to explain the incident. f le stated the: followin:

      "Bradley B. Carlisle: Approached Bridge Street, Mr. Papenfuhs was sitting at the crossing. 'fold a that there were vehicles in the crossing, so I slowed down. As I approached the crossing, there was a black car going through the crossing. fie said as soon as this black car gets through the crossing, the crossing would be clear. I proceeded through the crossing and as I was entering the crossing, what I seen was Mr. Hudson backing up along the crossing. I proceeded to go through the crossing and the, he backed, backed up the truck in front of me.


    Robert Emmons: You say Mr., I'm sorry, who whose the Foreman that was giving you the instructions after the vehicle was clear that you could go through?


    Bradley B. Carlisle: Mr. Papenfuhs.


    Robert Emmons: Mr. Papenfuhs. How slid he communicate that with you.'

                                  P.L.B. No. 7048

                                  NO. 6`t, Case NA. 65

                                  Page 1


      Bradley B. Carlisle: Over the radio.


      Robert Emmons: Did you acknowledge that communication on the radio?


      Bradley I3. Carlisle: Yes.


      Robert E mmons: flow did you acknowledge it? What was your verbiage?


      Bradley B. Carlisle: Cue."


      (?n page ?4 the questioning ofCarlislc continued as i0ll<»s:


      "Rick Sandlin: You say that Foreman Papenfuhs was flagging the crossing and you were communicating with him on the radio?


      Bradley I3. Carlisle: Um-hum.


      Rick Sandlin: What channel was that''


      Bradley B. Carlisle: It was channel 87.


      Rick Sandlin: Which that would be the?


      Bradley B. Carlisle: I guess you could call it the Maintenance of Way channel.


      Rick Sandlin: Maintenance of Way or gang channel'


      Bradley B. Carlisle: Yeah. The whole gang was on channel 87."


Carlisle's testimony confirmed Foreman Papentuh's version ol'the incident that the two were communicating with each other concerning the movement of the scrap crane and both understood that when the: black vehicle passed over the, crossing Carlisle should proceed through the crossing. Carlisle acknowledged that understanding when he stated Copy. 'hhe testimony further afrmed that the Claimant was listening on a channel that the entire gang could hear can and when he heard the Foreman tell Carlisle that he could go through the: crossing he mistook that as an okay to back up the pick-up. l~estimony also substantiated that the Claimant did not toll«w the Rules for safely hacking a vehicle when you do not have a clear sight line Substantial evidence was adduced at the Investigation that the Carrier met its burden of proof' that Claimant was guilty as charged.
                                  t'. G.B. No. '11)48

                                  .Award No. 65, Case No. 65

                                  Pale 6


The only issue remaining is whether the discipline was appropriate. Salivty on the Job is an important issue; and Carrier Rules are in place to protect employees and the: general public. Employees are required to adhere with those Rules and even though no one was harrued in this instance it had the potential for serious consequences and was a serious violation. The Board finds and holds that the discipline assessed was proper because it was not excessive. arbitrary or capricious and was in accordance with the Carrier's Policy for l:mployce Performance accountability (Pl'.PAj.

                  AWARD


      Claim denied.


Miller, Chairman & Neutral Member

 Samantha Rogers, Carrier Men r David D. Tanner, Employee Member

 Award Date:-.~ -_