PUBLIC LAW BOARD N0. 2206
AWARD N0. 77
CASE N0. 79
PARTIES TO DISPUTE:
BURLINGTON NORTHERN RAILROAD
and
BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYES
STATEMENT OF CLAIM
:
Claim of the System Committee of the Brotherhood that:
1. The demotion of Track Inspector, Stephen L. Hoffman, to
Sectionman January 22, 1980, was without just and sufficient
cause and wholly disproportionate to the alleged offense.
(System File T-M-285C)
2. Claimant Stephen Hoffman be returned to the position of
Track Inspector with his seniority restored, his record
cleared, and paid for all wages lost including overtime.
OPINION OF BOARD
:
Claimant was employed as a Track Inspector on the Track Subdepartment
of the Maintenance of Way Department at Elk River, Minnesota. On Friday,
December 6,.1979, the date of the incident in question, Claimant was
patrolling track on the First Subdivision near Anoka, Minnesota. He was
operating a motor car, traveling on Carrier tracks. At approximately 3:50 p.m.,
near Milepost 30 and approximately 25 feet from a railroad crossing, Claimant
noticed an automobile approaching. Although he applied his brakes Hoffman
was unable to stop his motor car before it impacted upon the side of the
automobile. Both vehicles were damaged and Claimant suffered minor injuries
to his right foot and back, but the automobile driver suffered no injuries.
PLB - 2206, Awd. II77 2
As a result of this incident Claimant was notified by letter dated
December
7, 1979
to attend an investigation to determine his responsibility
in connection with his alleged failure to have Motor Car NP
39557
under
control when approaching the grade crossing.
Following the investigation Claimant was found not to have had his
motor car under control, a violation of Rules
62
and
63
of the BN Rules of
the Maintenance of Way Department. As a result he was demoted to Section
Laborer and notified of the decision January
22, 1980.
In the present case Carrier has failed to meet its burden of proof
to demonstrate by a preponderance of probative evidence that Claimant failed
to have his motor car under control. Carrier seeks to prove the case in two
ways: first, it argues that the fact an accident occurred is proof that the
motor car was not handled in the "absolutely" safe manner required by the
Rules. This attempt to apply strict liability to Claimant for an accident
cannot stand without proof of fault. Further, there is evidence admittedinto the investigation and transcript showing that the driver of the automobile acted in a negligent manner by failing to stop at the red stop sign
placed prior to the crossing. It is true that a citizen's admission of
culpability may not absolve a Claimant who was otherwise guilty. See
PLB.
2206-30
C8ischen) and Award
3-10880
(Boyd). However, such is not the
circumstance in the present case. Carrier has not proved fault on the part
of Claimant and, as such, the accident itself cannot be dispositive of his
guilt.
Carrier's second argument is that Claimant could have avoided the
accident if he had installed ice brakes furnished to him for his motor car
five days prior to the accident. It has not been shown that failure to
install the ice brakes contributed to the accident and absent speculation
PLB - 2206, Awd. X177
without other evidence that installation might have prevented the accident
we cannot so assume. Perhaps Claimant should have installed ice brakes in
the days preceding the accident in question, but Carrier has not provided a
link between his failure to do so and the charge that he did not have his
motor car under control when approaching the grade crossing.
Carrier has failed to prove by a preponderance of the evidence that
Claimant failed to have the motor car under control. Accordingly, the
claim must be sustained.
Claim sustained.
(30) days of issuance.
AWARD
Carrier shall implement this decision within thirty
Carrier
M
ber.
Employe Member
Dana E. Eisch Char
Date: i ~~IGGGG(