PUBLIC LAW BOARD NO. 2746
BURLINGTON NORTHERN, INC.
* CASE N0. 3
-and
*
BROTHERHOOD
OF
MAINTENANCE
OF
WAY
EMPLOYES * AWARD
NO. 3
*
. Public Law Board No. 2746 was established pursuant to the
provisions of Public Law 89-456. The parties, Burlington
Northern, Inc: (hereinafter the Carrier) and the Brotherhood of
Maintenance of Way Employes (hereinafter the Organization) are
duly designated carrier and organization representatives as those
terms are defined in Sections 1 and 3 of the Railway Labor Act.
After hearing and upon the record, this Board finds that
it has jurisdiction to resolve the following claim:
"The Agreement was violated January 9, 1979, when
restricting the seniority of Machine Operator,
J. G. Palma to service as sectionman only without
just and sufficient cause and wholly disprop6rtionate to the alleged offense.
Claimant J. G. Palma now be paid for all lost wages,
his seniority be restored as Group 3 Machine
Operator and Truck Driver and any other seniority
he held be restored. Also he is to be returned as
operator of ballast regulator X-06-0007."
Prior to the events leading to this claim the Claimant was
employed as a Group Three Machine Operator assigned to a Ballast
Regulator at Pasco, Washington. On November 9, 1978, he worked
his regular assignment near Kennewick, Washington. Claimant's
Assistant Foreman reported that on that date the Claimant
PLB No. 2746
Case/Award No. 3
Page Two.
operated his ballast regulator in an unsafe manner. More speci
fically, the Claimant was alleged to have operated the machine
at an excessive rate of speed resulting in damage to signal
equipment and a motor car setoff. It is also alleged that he
disregarded red flags and wye orders and refused to follow in
structions to slow down.
As a result of the incidents on November 9, 1978, the
Claimant was timely notified to attend an investigation on
November 21, 1978, "for the purpose of ascertaining the facts
and determining your responsibility in connection with your
failure to operate safely and in compliance with instructions
of Foreman, while performing duty about 9:00 a.m., November 9,
1978, as operator of Regulator X06-007 at Kennewick, Washington."
The hearing was postponed until December 13, 1978, at the Local
Chairman's request. Based on facts developed at the investigation,
the Carrier concluded that the Claimant violated General Rule A
of the Rules of the Maintenance of Way Department and Safety
Rules 661 and 667. Claimant was demoted to sectionman.
The organization raised two procedural arguments. The first
is that the Carrier's written notice of investigation failed
to specify the charges against the Claimant. This Board disagrees. The notice informed the Claimant that the purpose of
the investigation was to ascertain the facts and the Claimant's
responsibility "in connection with (Claimant's) failure to operate
PLB No. 2746
Case/Award No. 3
Page Three
safely and in compliance with instructions ...while performing
duty about 9:00 a.m., November 8, 1978, as operator of Regulator
X06-0007 at Kennewick, Washington." The notice specified the
event and pointed out that the Claimant's responsibility for it
would be determined (See Third Division Award No. 22663, BRS v.
BN, Edgett). The notice was comprehensive and specific enough
to inform the Claimant of the matter under investigation. The
questions of who, when, where and why were presented. Claimant
came to the investigation prepared and was not prejudiced by
any alleged deficiency in the notice. This Board finds that the
notice requirements were fulfilled.
The Organization also asserted that the Claimant was denied
a fair and impartial hearing under Rule 40A because the Carrier
failed to call all witnesses who had knowledge of the incidents.
Again, the Board disagrees. The witnesses not called were signal maintainers and an employee assisting the Claimant. The
testimony of these witnesses would only have been corroborative.
There was no disagreement between the Carrier's witnesses and the
Claimant regarding the relevant facts. Furthermore, the presence
of these additional witnesses was not requested prior to the investigation or, at least, during the investigation. If the Organization believed that testimony from these witnesses was necessary, it could have requested a recess during the investigation
in order that they might be called. But this was not done. The
Organization has failed to demonstrate that the witnesses were
necessary.
PLB No. 2746
Case/Award No. 3
Page Four
The Organizations argument on the merits is twofold.
First, it is contended that the Carrier did not demonstrate that
the Claimant operated in an unsafe manner. Second, it is argued
that the Claimant operated his ballast regulator in the manner
in which he was taught to operate it. Apparently, Claimant's
instructor had operated the ballast regulator at a faster rate
of speed than most ballast regulator operators. Neither argument refutes the fact that the Claimant operated his machine in
a reckless manner and at excessive speed which resulted in damage
to signal equipment and a motor car setoff. Nor do the arguments
excuse the Claimant's disregard of red flags, wye orders and instructions to slow down.
While the speed limits over the stretches of track involved
are not set by any Rule or Regulation, reliable testimony established that the proper speed was 2 m.p.h. Claimant testified
that he estimated his speed to be between 10 and 15 m.p.h.
That's like driving a souped-up sports car on a residential
street at Daytona Raceway speeds. And while Mario Andretti,
like Claimant's instructor, might be able to do it without untoward consequences, a relatively inexperienced driver probably
would not be so lucky; and, the Claimant wasn't. Despite prior
warnings to slow down and to avoid damage, the Claimant operated
the ballast regulator at an excessive speed. The demotion was
not arbitrary and capricious in light of the circumstances.
Accordingly the claim will be denied.
PLB No. 2746
Case/Award No. 3
Page Five
This Board wishes to emphasize that this award is based
solely on testimony concerning the events occurring on November 9, 1978. Testimony regarding the dates of November 7, 1978,
November 8, 1978 and November 10, 1978 were not considered and
were scrupulously ignored in the formulation of this award.
AWARD: Claim denied.
F. H. Fun:,
Organization Member
July 6, 1981
Saint Paul, Minnesota
C. Lane,
Carrier Member
Richard R. Kas er, Chairman
and Neutral Member