Brotherhood of Maintenance of Way Employes
 PARTIES TO DISPUTE: and
 Burlington Northern and Santa Fe Railway
 (Former ATSF Railway Company)

 STATEMENT OF CLAIM:
















FINDINGS AND-OPINION:
Upon the whole record and all the evidence, the Board finds that the Carrier and Employees ("Parties") herein are respectively carrier and employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the dispute herein.

 The Claimant, Mr. Gary Rockbridge, entered the Carrier's service on March 24, 1997. He was working as a Trackman in the Maintenance Way Department on November 2, 2001, on Gang RP 16, when he was asked to operate a spike reclaimer machine while it was traveling to the yard at Richmond, California, in company with five other on-track machines, because no one else was available or willing to do so. The Claimant agreed to operate the machine.

 The Carrier's rules require that when on-track machines are traveling from one location to another (as distinguished from working on the track), they are to maintain a distance of 300 feet apart, except when closing up ("bunching") for movement over short segments of track, such as at road crossings, movable structures, and control points. Machines are to be kept not less than 50 feet apart when bunching at such points.

 plb4244 293
 Public Law Board No. 4244 Award No. 293
 Case No. 300

 As the group of six machines approached the yard at Richmond, they began bunching at a road crossing. The Claimant had his machine under control, but had not yet stopped behind the preceding machine. He signaled to the following machine, operated by Machine Operator Kenneth Wartz, that he was stopping. The Claimant changed his attention alternately between watching his approach to the machine ahead of him, and observing the movement of Mr. Wartz's machine behind him. The track at this point was on a descending grade. The Claimant perceived that the following machine was closing in too rapidly and would not be able to stop before colliding with his machine. He also observed Mr. Wartz jumping off his machine. The Claimant attempted to unfasten his seat belt when the collision seemed inevitable, but was unable to get it released before his machine was struck from behind. He suffered an injury described in the record as a lumbar strain.

 The Claimant and Mr. Wartz were served a notice of charges and investigation, which was postponed several times because of the Claimant's disability, and finally held on October 24, 2002. The stated purpose of the investigation was:

A transcript of testimony taken in the investigation, and attached exhibits is in the record before this Board. On November 21, 2002, the Claimant was notified of the Carrier's decision. It reads, in part, as follows:

plb4244_293 2
 Public Law Board No. 4244

 you commit another serious rule violation during the tenure of this probation period, you will be subject to dismissal.

 The Rules cited in this letter read as follows:

 Maintenance of Way Ooeratine Rule (MWOR) 1.1
Safety Safety is the most important element in performing duties. Obeying the rules is essential to job safety and continued employment.

 Empowerment
 All employees are empowered and required to refuse to violate any rule within these rules. They must inform the employee in charge if they believe that a rule will be violated. This must be done before the work begins.

 Job Safety Briefing
 Conduct a job safety briefing with individuals involved: Before beginning work Before performing new tasks When working conditions change The job safety briefing must include the type of authority or protection in efect.

 MWOR 1.1.1
MWOR 1.1.2
MWOR 1.13
p1b4244 293

 Award No. 293
 Case No. 300

 In case of doubt or uncertainty, take the safe course.

 Employees must be careful to prevent injuring themselves or others. They must be alert and attentive when performing their duties and plan their work to avoid injury.

 Employees will report to and comply with instructions from supervisors who have the proper jurisdiction. Employees will comply with instructions issued by managers of various departments when the instructions apply to their duties.
 Public Law Board No. 4244 Award No. 293
 Case No. 300

 Maintenance of Way Safety Rule S-14.1 (in part)


BNSF Engineering Instruction (E.I.) 1.1.613















E.I. 1.1.9










plb4244 293 4
 Public Law Board No. 4244 Award No. 293
 Case No. 300











The Organization promptly appealed the Carrier's disciplinary decision to its Assistant Director - Labor Relations. The Organization argues that the Claimant did not violate any of the Carrier's rules. He was moving his machine as instructed, preparing to stop in accordance with the rules, had signaled the following machine that he was stopping, and was nevertheless struck from behind. He reported his injury to a supervisory officer, as required by the rules. The Organization believes the discipline is unwarranted, and the Carrier has not borne its burden of proof.

 The Carrier rejoins that the Claimant was injured to the degree that he could only perform fight duty assignments. Even though he had been instructed by a physician not to perform any strenuous work or lifting, when his automobile broke down on November 8, 2001, the Claimant further injured his back by doing the repair work himself. In doing so, the Carrier argues, he failed to maintain a safe course, violating MWOR 1.1.1; he was not alert and attentive, violating MWOR 1.1.2; and he failed to comply with the instructions of the Medical Professional who placed lifting restrictions on him, violating MWOR 1.13. His overall attitude toward his own safety violated MWOR 1.1. The consequence was further injury to his back. The discipline assessed him was fully warranted, the Carrier argues, and the Organization's claim is therefore denied.

 The Board has considered the arguments presented by the Parties. Assistant Roadmaster Phil Heusler, a witness, testified that the Claimant said that his back began to hurt him again when he removed a wheel from his car on November 8, 2001. While there may well be some merit to the argument that he exacerbated his injury when he repaired his own automobile, the Claimant

 p164244_293
 Public Law Board No. 4244 Award No. 293
 Case No. 300

 was not charged nor disciplined for any occurrence on that date. The notice of investigation addressed issues in connection with the collision on November 2, 2001, and the discipline was assessed for the events on November 2, 2001, as a careful reading of the notices quoted on pages 2 and 3, above, clearly indicate. They do not, even by inference, refer to the Claimant's difficulty with his personal vehicle on November 8, 2001. The Board does not believe that when these letters were written, any thought was given to the events on November 8, 2001. The collision was not the result of any act of commission nor omission by the Claimant. He controlled his machine and he signaled the following Machine Operator that he was stopping.

 Finding that the Carrier has not sustained its burden of proof in connection with the matters with which the Claimant was charged, the collision on November 2, 2001, there is no need to address any of the other arguments raised by the Parties. The Organization's claim is sustained.




                  Robert J. Irvin, Neutral Member


R. B. (ZZ Wehrli, Employe . KUL, Member Thomas M. Rohling, Carrier tuber

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 Date

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