NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 7426 AWARD NO. 10, Case No. 10)
BROTHERHOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION - HIT RAIL CONFERENCE
UNION PACIFIC RAILROAD COMPANY (SPWL)
William R. Miller. Chairman & Neutral Member T. W. Kreke, Employee Member B. W. Hanquist, Carrier Member

 Hearing Date: September 22, 2010

 STATEMENT OF CLAIM. "Claim of the System Committee of the Brotherhood that:



DINGS:
73

 Public Law Board No. 7426, 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 Act, as amended; and that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing thereon and did participate therein.

 On June 16, 2009, Carrier notified Claimant to appear for a formal Investigation on 2009, concerning in pertinent part the following charge:

 "...to develop the facts and place responsibility, if any, that while employed as Tamper Operator, at Lathrop, California, near Milepost 84.25, Oakland Subdivision, at approximately 11:46 a.m., on June 8, 2009, you were allegedly
 P.L.I3. No. 7426
 Award No. lll, Case No. 10
 Page 2
outside of your track and time authorization.
These allegations, if substantiated, would constitute a violation Rule 42.4.2 (Using Track and Time Authority), and Rule 6.3 (Main Track Authorization), as contained in the General Code of Operating Rules, effective April 3, 2005, in the System Special Instructions, effective November 1'7, 2Uh8, and in the Maintenance of Way Signal Rules, effective November 17, 2008. Please be advised that if you are found to be in violation of this alleged charge the discipline assessment may be a Level 4, and under the Carrier's UPGRADE Discipline Policy may result in up to 1!i days off work without pay or up to five (5) days training without pay and you must pass the necessary operating rules exam or equivalent in order to return to work and a Corrective Action Plan must be developed prior to returning to service."
On July 16, 2009, Claimant was notified that he had been found guilty as charged and

 was assessed a Level 4 discipline

 There is no dispute between the parties that the Claimant entered the service of the Carrier on May 1, 1989, and at the time of the charges was working as a Tamper Operator when he was charged with being outside of the authorized track time limits on June 8, 2009.

 Organization's position that on June 8th, the Claimant was on the Tamper

 machine operated by Machine Operator W. Curley when he traversed it past CP SP093, beyond Foreman Westphal's Track and Time Authority. It argued that the question to be answered, is did the Carrier prove the charges against the Claimant and the answer has to be a resounding NO, because according to it the Claimant was only a passenger on the Tamper that was operated by W. Curley when the incident occurred an June 8, 2009. It further argued that the testimony substantiated that the Claimant instructed Mr. Curley to stop the Tamper and not go past the designated control point location and despite his instruction Curley failed to stop the Tamper. It

 concluded by requesting

 day suspension without pay.

 discipline be rescinded and the Claim be sustained as presented.

 position of the Carrier that all occupants within a machine such as a Tamper

 should know and understand their on-track protection when occupying the track. It argued that the Claimant was within the cab of the machine when it ventured outside the authorized limits and because of that he holds responsibility for the safety of himself and others. It further argued that it is irrelevant the Claimant realized their location and questioned their authority as they traveled past their authorized limits. According to it, the Claimant and the person operating the Tamper are equally responsible to individually ensure they remain within the limits and because he failed to meet those responsibilities, he was guilty as charged. It closed by asking that the discipline not be disturbed and the Claim remain denied.



The Board has thoroughly reviewed the transcript and the retard of evidence. There is no dispute between the parties that the Claimant was an board the Tamper when it exceeded its Track and Time Authority. The Organization's argument is that because the Claimant was a passenger an the Tamper and not the Operator of the machine he was not responsible and it further argued that he directed the Operator to stag, whereas, the Carrier argued that he bare an equal responsibility and his directive to stop at the last moment did not mitigate his obligation to knave whether they were within the limits.

 On June 8th the Claimant was instructed to ride as a passenger, being used as a lank out and to throw switches, an a Jackson 670 series Tamper, which was operated by System Machine Operator W. Curley. Contrary to the Organization's skillful coloration of the facts and despite the fact that the Claimant was not the Operator of the Tamper it did not absolve him from the responsibility to knave where he was as it related to track and time authority. On page 101 - 102 of the Transcript he was questioned as follows:

      "Q Can I ask yon to clarify, are we talking about a red signal or a red-


      A Aboard. Flags.


Formed- yes, Form 8.
Q So they- a Form B flag?
A Correct
Q Are you aware of the location of the red board on the Form B?
A I believe it was to be- the red board was to he at 93.
Q Would that he Milepost 93 or-
A Milepost 93, yes.

 Q Upon hearing or- the conversation on the radio to Mr. Curley not to go past SP 093, did you discuss that with Mr. Curley?

 A When I seen at 84.5, I did see the red/yellow flag and I was concerned about it because it wasn't- which I was not aware that we were in 93. It- it
                  P.L.B. No. 7420

                                  Award No. 10, Case No. 10

                                  Page 4


        said 84.5 so that struck me as odd with the Bag being at 84.5 instead of

        93 so yes, I figured something was wrong and I did say to hold up, but-


        Q Since I've asked this question to several people today, I've cotta ask you. Are you aware of the right to challenge on track safety?

                                        -


      A Yes. (Underlining Board's emphasis)


Claimant and Mr. Curley were instructed by Foreman Westphal to traverse the Tamper west down the main track under Westphal's Track and Time Authority, from Control Paint (CP) F074 and to stop short at CP SP(?$3, which is also identified as CP93 or Milepost 84.5. Claimant had a responsibility just as Mr. Curley did, to know that Milepost $4.5 and Control Point SP093 were one in the same and it clear from the aforementioned testimony that the Claimant did not understand that. Furthermore, the red/yellow flag spotted by the Claimant gave him a right to challenge Curley's actions, even though he argued that he did not exercise that right because in the past whenever he exercised a challenge it was not considered appropriate. In this instance, the Claimant should have exercised that right. The record is clear that the Carrier met its burden of proof that Claimant was guilty as charged.

 The only issue remaining is whether the discipline was appropriate. Compliance with ontrack safety rules and/or procedures is important to ensure the safety of those on or near the tracks, of the trains which operate on those tracks, and of the employees and passengers who occupy the trains. The Board finds and holds that the discipline will not be rescinded because it was not arbitrary, excessive or capricious.

 Claim denied.

          William R. Miller, Chairman


13. W. Hanquist, harrier Member T,`'W. eke, E ogee Member

Award Date: .~e~,~·, ~ e_r v t%* ton