PUBLIC LAW BOARD N0. 2699
PARTIES Brotherhood of Maintenance of :Jay Employes
DIMTE: and
Union Pacific Railroad Company
STATEi4ENT Claim that Track Inspector Ronald Bird, Idaho
Division, was discharged without just and
sufficient cause in connection with his failure
to protect a wide gauge condition which caused
the derailment of X-3084-E on January 26, 1979.
FINDINGS: By reason of the Agreement entered into by and between
the parties on August 31, 1978,~and upon all the
evidence and the whole record, the Board finds that the parties
are employes and carrier respectively as defined in the Railway
Labor Act, as amended, and that it has jurisdiction.
Claimant was taken out of service on January 29, 1979,
and on the same day he was formally charged as follows:
On Friday, January 26, 1979, between
11:00 A.M. and 12 Noon you reportedly
found 1-3/4" wide gauge at West end
Bridge, M.P. 36.99, and failed to
properly protect with a slow order or take
track out of service. This resulted in a
subsequent derailment of ten (10) cars
and a caboose on Extra. 3084 East.
An investigation was held on February 1, 1979, and he was dismissed
from service on February 12, 1979.
The record shows that when Claimant discovered the
defective rail he tried twice to reach Roadmaster T. D. Allen,
to report the incident and to ask for instructions. He was
unsuccessful. At approximately 11:45 A.M. he contacted the
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Case No. 2
page 2
Kemmerer Depot by radio, spoke to the first trick operator,
and asked for Section Foreman L. Lowder or Roadmaster T. Allen..
Claimant told the first trick operator, Kirt W. Christiansen
to contact Lowder or Allen. Christiansen contacted Allen and
reported his conversation with the Claimant that the track was
out of alignment at M.P. 36.99 by about 3/4 of an inch.
Christiansen contacted Allen again a few minutes later and told
him that there was about 1 and 3/4 inch wide gauge on the track
not 3/4 of an inch. While Allen denied having the second
conversation with Christiansen, it is apparent from all of the
evidence in the pecord that there is a strong presumption that
Allen knew that the defective track was 1 and 3/4 inches wide
and not just 3/4 inches.
Claimant was charged with violating the following
Maintenance of ',Jay Signal Rules and C. E. Bulletin:
GENERAL NOTICE - Safety is one of the first
importance in the discharge of duty ...
Obedience to the rule is essential to safety
1903 - Gage on curves, including widening
due to wear, shall never be permitted to
exceed four feet nine and one-half inches
(4'91/2").
4000 - In case of doubt or uncertainty the
sera
a
course must be taken; in all cases,
the safest available methods must be
followed.
C. E. 0- 0-T -Any defective or unsafe
cOF s ound shall be corrected at the
time of inspection or train operations
properly protected by placing slow orders
or taking the track out of service if
necessary.
It is Claimant's position that he did report the
rail condition to Mr. Allen through Mr. Christiansen and that
he thus complied with Rule 4000. He quotes Rules E and F and
states that he complied with the intent of both by reporting to
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Case No. 2
page
3
the proper authority. But he did not go far enough to comply
with Rule 4000 and with C. E.
70-30-T.
The safest available
course Claimant should have followed was to issue a slow order
or to take the track out of service before attempting to
contact Allen.
And, to be absolutely safe, he should also have contactedthe dispatcher, at least until he could reach Mr. Allen. In
this respect a serious violation of the rules and instructions
were "apparent" under Rule 48(0). Claimant was properly held out
of service.
Uporf this record, the Board finds that Rr. Allen,
who was Claimant's supervisor, failed to take any action whatsoever
after he learned of the defective rail. There is a strong
probability that had he immediately issued a slow order or a
stop order to Extra 3084East, the derailment might have been avoided.
The Board also finds that under these circumstances, the dismissal
of the Claimant from service is too severe a penalty, that the
Claimant, Ronald Bird, should be reinstated as an employe of the
Carrier with full seniority and other contractual rights preserved
and unimpaired in the positions of Track Inspector, Section Foreman
and Sectionman with such seniority dates as they existed on
January 26,
1979.
Because the said Claimant, Ronald Bird, did not
exercise the safest care and caution to protect trains moving
along the track he discovered as defective, the Board finds that
he is entitled to no compensation whatsoever for lost earnings or
for any contractual benefits from January
29, 1979
to the date of
his reinstatement.
AWARD
Claim is sustained in accordance with the findin s.
Carrier is dire ed to comply with this award within thirty
g(30)
days from the d e of this award.
D 'D D
`CK,
Chairman and
M
e ka.1, tuber
1 tn.~.
E. R. SMYER , rier Member S. n. F 6D:NO, plo Member
DATED:
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/ 9
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