Y
AWARD NO. 505
--°-Case No. 539
PUBLIC LAW BOARD NO. 1582
PARTIES) THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY
TO )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM:
That the Carrier's decision to remove Southern Region Machine
Operator H. K. Henderson from service was unjust.
That the Carrier now reinstate Machine Operator Henderson with
seniority, vacation, all benefit rights unimpaired and pay for all
wage loss as a result of investigation held 1:00 p.m., Monday,
April 1, 1991, continuing forward and/or otherwise made whole,
because the Carrier did not introduce substantial, creditable evidence that proved that the claimant violated the rules enumerated
in their decision, and even if claimant violated the rules enumerated
in the decision, permanent removal from service is extreme and harsh
discipline under the circumstances.
FINDINGS: This Public Law Board No. 1582 finds that the parties
herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, and that this Board has jurisdiction.
In this dispute the claimant was notified to attend an investigation
in Houston, Texas on April 1, 1991 to develop the facts and place
his responsibility, if any, in connection with possible violation
of Rules A, B, I, 1007 and 1026, Safety and General Rules for All
Employees, Form 2629 Standard effective October 28, 1989; Rules
4(c) and 1041, Rules and Instructions for Maintenance of Way and
Structures, Form 1015 Standard, effective October 29, 1989, Maintenance of Way Bulletin No. 19; and Section 12.2 Chief Engineer's
instructions, Form 1015 Chief Engineer's Instructions Standard,
concerning the collision which occurred at Brenham, Texas on March
17, 1991 between Model 40 Burro Crane, to which he was assigned
and operating, and the Little Giant Crane.
Pursuant to the investigation the claimant was removed from service
for an infraction of Rules A, B, I, 1007, 1026, Safety and General
Rules for All Employees, Rules 4(c) and 1041, Rules and Instructions
for Maintenance ofWay and Structures, Maintenance of Way Bulletin
No. 19 and Section 12.2 Chief's Engineer's Instructions.
The transcript of the investigation contains 83 pages of testimony.
That testimony and the exhibits submtited by the parties have.~been
studied and considered by the Board.
The claimant was the first witness called, and the Union objected.
The Carrier has the right to call witnesses in any order they so
desire and has the right to call the claimant first.
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Page 2
The claimant admitted he was operating the Model 40 Burro Crane on
March 17, 1991 and collided with the Little Giant crane at Brenham _
on that date. The claimant testified he discovered his magnet was
not working, and he used the gondola to stop the machine.
The claimant also testified as they were coming in he picked up
speed, and as he got to Royce Crossing, he used the hand brake on
the gondola to stop or slow the gondola down because at the road
crossing, the public is in the right of way, and he knew he could
not go through the road crossing at a high rate of speed. He stated
he went on in and at each road crossing he used the gondola to slow
the car down.
The claimant testified, however, that when he got to Highway 38
Overpass Crossing, ire came around the corner, and as he was approaching Jackson and Field Street, he went to apply the brakes, and he
guessed the valve stuck and would not slow him down. He stated he
attempted to apply the brakes on the machine, and it wouldn't slow
down, so he started reversing the gear to stop the machine, but
that did no good, and at that time he was hollering at Reba stating
he had no brakes, and he guessed he hollered about four times.
The claimant testified that by the time he got around the corner he
saw the Little Giant was sitting on the main line, and he just jammed
it in reverse and left it in reverse, left the foot brake on the
machine and the hand brake on the gondola car and "deballed" it
because most of the time deball will stop the machine and the car.
The claimant further testified that all this did no good, and he
was about to jump when he looked down and saw rails and plate where
he was going to jump, so when he jumped to miss these, he got twisted
up in the air, and his landing wasn't too good, and he started rolling and falling.
The claimant testified that when he used the phrase "deball," he
meant he let all the air out, and the car was designed so that this
would stop the car.
The claimant testified that when he took control of the gondola, he
did not know if the brakes were set on the gondola. He stated he
used the gondola to stop the machine by using the emergency brake.
He stated he used the brake on the burro crane to stop the gondola
and slowed it down several times with the gondola.
The claimant was asked if he checked the brakes when he checked into
the gondola, and he stated he did not do so but he was
in
first gear __
when he pulled out of the switch, and he applied the brakes, and they
stopped good and everything. The claimant stated he did not make a.
visual inspection on the brakes on the gondola.
The Union objected to Assistant Roadmaster R. S. Maddox being allowed
to remain in the room after he had testified. The Board finds that
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Page 3
prior to the commencement of the investigation the Union did not
request that the witnesses be sequestered. This means to request
that none of the witnesses be present during the testimony of the
other witnesses. If such is requested by either party, it should
be granted, and after a witness has testified, he should not be
allowed to remain if he is going to make further testimony. Under
the circumstances herein the Board finds no justification not to
consider Mr. Maddox's later testimony.
Machine Operator A. J. Hilley testified that he placed the car he
had been working on in emergency. This is the car which claimant
later picked up. Mr. Hilley testified it would not be advisable
to attempt to operate a crane hooked to a gondola without hooking
up the air to the car. He said it would be kind of foolish.
Assistant Supervisor Roadway J. H. Graham testified that on the
morning of the 18th he inspected the Model 40 Burro Crane and
checked all of the safety items. He stated one brake pin was
gone out of the brake riggings, and when he started it up, the
brake pipe pressure was 30 pounds high, and the main reservoir
pressure was 70, so the brakes on the crane were working.
Supervisor Graham further stated the rear was applying but the
front was not applying because the brake pin was out. He stated
the main reservoir pressure should be set between 90 and 105 and
the brake pipe about 70. He stated there was no way the collision,
which occurred would have resulted from the settings being off.
Equipment Supervisor D. Meredith testified that the charge to the
brake pipe pressure of 30 psi on the Burro Crane would set the
brakes very, very slowly and would be a loose set. He also stated
the emergency reservoir on the gondola would be inoperable at 30 psi.
He testified that everytime you pick up a car, you should visually
see that the brakes work.
Roadmaster Wagner testified that the proper way to release the brakes
on a car would be to connect the air hoses, open the angle cocks,
charge the system, pump the air up to release the brakes. He stated
the claimant did not release the brakes in the proper manner and did
not explain why he did not do so.
After reviewing all of the testimony and the claimant's past machine
operator's record, the Board finds that the claimant's Class I and
II machine operator rights should be revoked.
At the same time the Board finds that permanent dismissal is too
severe and directs the Carrier to reinstate the claimant with
seniority and all other rights unimpaired but without pay for time
lost.
AWARD: Claim sustained as per above.
Award No. 505
1 Page 4
ORDER: The Carrier is directed to comply with this award within
thirty days from the date of this award.
j4tjd
Sdu~ , 9
Presto J. Moore, hairman
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