PUBLIC LAW BOARD NO. 3836
BROTHERHOOD OF MAINTENANCE
OF WAY EMPLOYEES
-and-
SOUTHERN PACIFIC TRANSPORTATION
COMPANY (WESTERN LINE)
CASE NO. 5: 1. B & B Foreman J.R. Harrison from discipline
by suspension for sixty (60) days.
2. BB & U Carpenter B.A. McAdam from discipline
by suspension for thirty (30) days.
3. BB & U Carpenter M..7. Ivanusich from discipline by suspension for thirty (30) days.
BACKGROUND: -
On October 23, 1985 a flat car ran away at, or about, M.P. 186.-6
near Norden, California while B & B employees were attempting to offload a trailer. The run away passed through an open derail, picked
switches entered upon the main line on 1.8 percent down grade
traveled several miles, thM.V-i; the lading on a curve, traveled several more miles and derailed down an embankment. There were no
personal injuries.
As a result of the aforesaid incident the Appellants, listed
above, were disciplined for having violated certain of the Carrier's
Rules and Regulations.
Assistant Division Engineer J.J. Deis conducted a "Hearing" on
November 5, 1985 in connection with "alleged violation of part of
Rules 'M-801", 'M-818' and '104-A' which resulted in a runaway flat
car at or about MP 186.6 near Norden, California on October 23, 1985."
PLB-3836 - 2 - Award No. 5
Each of the Appellants testified on their own behalf; a summary
of that testimony is set forth below.
8 & B Carpenter M.J. Ivanusich testified:
Ile was employed by SOPTC for approximately six (6) years, was
generally familiar with the applicable Rules & Regulations.
That; on October
23, 1985
he was riding in a "High Rail Vehicle"
from "Tunnel 6 to Shed
38"
which passed through a derail that had
been placed in other than the derailing position by "Welder -
Schwartz."
That; "Schwartz unlocked it
main) and, then, I had to get out
off the siding to the main and he
and I believed that he threw it
That; he did not look back
"No, I honestly believed it was
and
(35
Switch from the siding to the
and unlock the box and switch it
[Schwartz) went back by the trailer
[the derail] back on the way back."
to see if the derail was closed,
closed and I didn't double check it."
That; the "High Rail vehicle" passed through the "open" derail
that he did not stop to return it to the derailing position.
8 & B Carpenter B.A. McAdam testified:
He was employed by SOPTC for twelve and one-half years, two years
as a Carpenter, He is generally familiar with !he applicable Rules &
Regulations; he knew he was not going out on the track without having
all required decails in a derailing position.
That; he did not make any effort to return the derail back to a
PLB-3836 - 3 - Award No. 5
derailing position -- "No, I didn't." (TR 35)
Semi-Truck Driver J.L. Valliere testified:
He has been employed by SOPTC for approximately seventeen years,
ten (10) as a Truck Driver, and is generally familiar with the applicable SOPTC Rules & Regulations.
On October 23, 1985 while in the process of removing a partially
loaded cement trailer from a flat car at Norden, California, he
backed up a portable ramp (guided by B & 3 Foreman Harrison), and
discovered that the trailer was "in cockeyed", i.e. "not straight in
parallel with the deck," thus, he could not couple up to the trailer.
That; while maneuvering his tractor on the flat bed, attempting
to make the hitch, the flat car began moving ahead, to the west.
Valliere jumped off the moving flat car containing the trailer and
his tractor.
That; neither he or Harrison checked to see whether the flat car
was secure or that the hand brake on the flat car was set before
attempting to drive his tractor up onto the flat car.
Neither did Valliere observe whether the derail was in place when
the evident flat car ran away.
B & B Foreman J.R. Harrison, Jr. testified:
He has been employed by SOPTC for approximately twenty (20) -
years, eight as a B & B Foreman; he is generally familiar with the
applicable Rules & Regulations.
PLB-3836 - 4 - Award No. 5
Harrison acknowledged that; he had been properly instructed -
concerning the importance of derails and the protection of equipment
in mountain grade territory "several times and, that; those under
his jurisdiction were similarly instructed. "They [Ivanusich and
McAdam] heard the same thing."
Harrison opined that; Ivanusich and McAdam were responsible to=see that the derail was lined for derailment; "Yes, Sir. All the -men that was at them switches knew better and they all know to check
and see that the stuff is relined." (TR 39)
Harrison did not check to see that the switch was properly lined
after the vehicles left the siding and, further; he could not see the
derail from where he was directing Valliere's movements up the ramp.
Harrison did not make any attempt to retrieve the runaway flat
car, nor, did he make any attempt to determine whether the flat car
was properly secured before attempting to off-Load the trailer.
Harrison acknowledged that under the circumstances it would have
been possible for the flat car to have moved while the tractor was
between the end of the ramp and the end of the flat car creating the
potential for serious personal injury. (TR 39)
Harrison also acknowledged that; obviously the derail remained
open following the departure of the "High Rail Vehicle" at about
7:00 A.M., thus, the derail was open when the tractor arrived at
about noon.
Harrison stressed that :1n the morning of October 23, 1985 he was
"running two gangs," that he had been assigned to obtain certain in-
PLB-3836 - 5 - Award No. S
formation for his Supervisor which necessitated him being on the
phone "as soon as possible aroung 7:00 A.M.'s it was then he was
notified that the tractor was coming around noon to remove the trailer
from the flat car. "...So I stayed at Norden and worked with the men
there arriving back at the Tunnel 6 at about 15 minutes to 12." (TR
42)
Asked if he still had time to "look around to see if everything
was proper and normal," Harrison replied he "could have." "I could
have drove down." "It is not visible or noticeable from my office,
and that is where I went to wait for him [the tractor]." (TR 42)
A summary of the testimony of the SOPTC Supervisory employees
called as witnesses is summarized below:
L.^._ King, Regional BB & U Manager - Did not witness or take part
:.n. c'le incident which occurred October 23, 1985.
He subsequently determined that; Harrison and Valliere were
attempting to off load a trailer from a flat car on the spur at
Tunnel 6. That; McAdam and Ivanusich were operating a rail-mounted -
chway truck from the spur at Tunnel 6 to I'ie main line and then to-anct.-·-- worx location.
That; the flat car ran away proceeding through the open derail,
split the switches and cont_nuesi down the hill on the main. That; a
runaway flat car on a 1.8 percent downgrade creates an "extremely
hazardo,:s and dangerous condition." That; the flat car derailed
"approximately 7.4 miles from where it originally started. That; no-
PLB-3836 - 6 - Award No. 5
injuries resulted from the runaway. That; he reviewed Rule 104-A
with Harrison and discussed its importance, "...I know I talked to!iim at least one time." (TR 14)
That; he had distributed "Certain of MW Rules" (See Employer's
Exhibit A attached to the Transcript), an3 discussed them with the
employees. -
Ct.A. Carter,
B & B
Supervisor - Employed by SOPTC for approximately
fourteen (14
) years, he is the -supervisor of the Appellants, he didnot witness what occurred on Octot.er 23, 1985.
Carter investigated the runaway and the open derail, and, de--termined that the derail was not returned to its normal position
following the passage of the "High Rail Vehicle" thus, permitting the
pass a<,o of the runaway flat car through the area to the main and down
the hill to the point where it eventually derailed.
Carter testified that he had instructed Harrison and the "men of
the gang" about "our derail switches." "We have portable derails
that were on the downhill side of our work." "They were to be placed
whenever the equipment was used on the track." "It was repeated over
and. over, stressed that point." "We didn't want anything to get
away." "In other words, it was a constant on-going thing, continu=
ally... it was an on-going thins through the whole job.'
Cart_r stated that it is normal'_y the responsibility of the person who opens the derail (the one who goes through it) to see that it
is returned to the normal position (the derailing position).
Carter could not say with certainty whether the Welder threw the
PLB-3836 - 7 - Award No. 5
derail or simply unlocked it and one of the employees on the truck -
threw it, but he was certain it was the responsibility of the truck
crew to return it to the derailing position.
Carter testified that the train crew placed the flat car on the
spur, but did not know if they secured it. Carter said he saw the
car on the spur October 22, 1985, but; did not inspect the car to
determine whether it had been secured. (TR 22)
Carter asked, "When a member of the gang opens the derail switch
whose responsibility is it to reline it," replied "It is the responsibility of everybody up there to make sure it is lined back." (TR 22)
Carter, when asked by Assistant Chairman Shelly, BMWE, whether,
if it was the responsibility of one individual to make sure they are
locked, wouldn't it be a safer place to work, Carter replied, "Yes,
it. would." (TR 23)
Carter stated he believed a propane cylinder had been removed
from the flat car on October 22, 1985. (TR 23) When Carter saw the
car on October 22, 1985 he observed that the derail was lined and
locked for derailment.
CP=%__~"' .NID F=NDINGS:
The Board must first determine if the provisions of Rul.. 45 were
complied w-.th by SOPTC. They were.
a) BMWE raised no objections to the manner in which the
"Hearing" was conducted.
PLB-3836 - 8 - Award No. S
b) Our analysis of the entire record shows that Mr. Deis
did accord these Appellants a "Fair and Impartial Hearing."
The Board turns now to the question of whether SOPTC adduced
"Substantial Evidence" to prove the guilt of the Appellants.
Clearly these Appellants, and BMWE (Shelly TR 43), tacitly
acknowledge they failed to abide by certain important Safety Rules &
Instructions.
The conduct of these Appellants on the morning of October 23,
1985 constituted a serious breach of their duties and responsibilities
as employees of SOPTC.
The events of that day had the potential for catastrophic results not only for these individuals but others as well. Further,
these Appellants are not tyros, they are mature, experienced Railroad
employees with previously clear Disciplinary Records.
Many Arbitrators regard Discipline as a teaching process, designed to instruct employees in the necessity of abiding by the
reasonable rules of conduct designed to regulate life in the work
place. It is only when employees demonstrate by their conduct an unwillinaness to conduct themselves appropriately, or display an inabilitv to adapt to the norms of the work place, that Discipline
converts into a punitive process, designed then to protect the welfare of the many against the transgressions of the few.
There is nothing in this record indicating that these Appellants
are Disciplinary Problems; quite the contrary. However, this one
abeJxation was of major signiF'cance and should be utilized as a
PLB-3836
teaching experience for future guidance.
Award No. S
Finally, a clear Disciplinary Record is analogous to a line of
credit one can call upon when needed.
Considered in this light, and; in view of the particular circumstances involved in this situation, the Discipline imposed was
"Excessive," within the meaning and intent of the parties' Agreement.
Accordingly, this Board will adjust the Discipline imposed in the
manner, and to the extent, set forth in the Board's Award.
AWARD:
The Discipline imposed upon J.R. Harrison, SSA #568-58-6972,
shall, and hereby is, reduced from a suspension of 60 days to a suspension of 15 working days without pay.
The Discipline imposed upon B.A. McAdam, SSA #551-90-6126, shall,
and hereby is, reduced from a suspension of 30 days to a suspension
of 8 working days without pay.
The Discipline imposed upon M.J. Ivanusich, SSA #565-88-2570,
shall, and hereby is, reduced from a suspension of 30 days to a suspension of 8 working days without pay.
IT IS SO ORDERED:
ohn J. G erin,
Chairman '& Neutral Member