PUBLIC LAW BOARD NO. 4244 Award No. 29-t
Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE: and
Burlington Northern and Santa Fe Railway
(Former ATSF Railway Company)
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
I . The Carrier violated the Agreement when on November 21, 2002, Mr.
K. Wartz was issued a Level S 6-month actual suspension and 3-year
probation for allegedly violating Rules 1.1, 1.1.1, 1.1.2, 1.13 and 6.51 of
the Maintenance of Way Operating Rules, Rule S-14.1 of the Maintenance
of Way Safety Rules and Rules 1.1.6B, 1.1.8 and 1.1.9 of the BNSF
Engineering Field Manual in conjunction not maintaining a safe braking
distance on anchor knocker and coming into contact with spike reclaimer.
2. As a consequence of the Carrier's violation referred to in part (1) above,
Mr. Wartz's record be cleared and he be reinstated with seniority, vacation,
all rights unimpaired and pay for all wage loss. [Carrier File No. 14-02
0300.. Organization File No. 240-1313-0124W.CLM].
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. Kenneth Wartz, entered the Carrier's service on June 19, 1991. He
was working as a Machine Operator in Gang RP16 on November 2, 2001, when the anchor
knocker machine he was operating, one of a group of six machines in traveling mode, collided
with the machine preceding his, a spike reclaimer being operated by Mr. Gary Rockbridge. The
collision resulted in injury to Mr. Rockbridge which precluded him from working for at least a
year, except for light duty performed immediately after the accident. The Claimant jumped from
his machine immediately before the collision. The record does not indicate whether he suffered
any injury.
An investigation into the facts and circumstances of the collision was originally set for
November 15, 2001, but following several postponements due to Mr. Rockbridge's injury, was
not held until October 24, 2002. A transcript of evidence and testimony taken in the investigation
Pib4244 294
Public Law Board No. 4244 Award No. 294
Case No. 301
is in the record. Thereafter, on November 21, 2002, the Claimant was notified of the Carrier's
disciplinary decision in a letter which reads, in part, as follows:
This letter will confirm that as a result of formal investigation held on October 24,
2002, concerning anchor knocker BNSF X0100402, operated by you, did not
maintain a safe braking distance and came into contact with spike reclaimer BNSF
X8400045, operated by Gary Rockbridge, on November 2, 2001, at approximately
1200 hours at approximately MP 1188.1 on Port Subdivision, which resulted in
injury to Machine Operator Gary Rockbridge; you are issued a Level S suspension
of six (6) months for violation of Rules 1.1 (Safety); 1.1.1 (Maintaining a Safe
Course); 1.1.2 (Alert and Attentive); 1.13 (Reporting and Complying with Instructions); and 6.51 (Maintaining a Safe Braking Distance) of the Maintenance of Way
Operating Rules in effect January 31, 1999, including revisions up to April 2,
2000; Rule S-14.1 (Riding on Machines) of the Maintenance of Way Safety Rules
in effect January 31, 1999, including revisions up to October 10, 1999; and 1.1.613
(Responsibilities of Individual Roadway Workers); 1.1.8 (Spacing of On-Track
Equipment); and 1.1.9 (Traveling On-Track Equipment) of BNSF Engineering
Instructions Field Manual revised March 1, 2001. Additionally, you have been
assigned a probation period of three (3) years. If you commit another serious rule
violation during the tenure of this probation period, you will be subject to dismissal.
For two years (until November 21, 2004) you will not be permitted to work as a
machine operator. After that period of time, if you have passed all required tests,
you will be given the opportunity to bid on a machine operator position.
The Rules cited in this letter read as follows:
Maintenance of Way Operatine Rule (MWORI 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.
plb4244_294
2
Public Law Board No. 4244 Award No. 294
Case No. 301
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 effect.
MWOR 1. 1. 1
In case of doubt or uncertainty, take the safe course.
MWOR 1.1.2
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.
MWOR 1.13
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.
MWOR 6.51
On-track equipment operators are responsible for maintaining a safe braking
distance between their on-track equipment and other on-track equipment, trains
and engines.
For purposes of this rule:
Working mode will apply to on-track equipment stopped or moving slowly in the
performance of maintenance activities.
Traveling mode will apply to on-track equipment moving to and from a work
location or performing inspection activities.
On-track equipment operators must:
· Insure that on-track equipment remains at least 300 feet behind a train or
engine while in working or traveling mode, except when it has been determined by a job briefing that the train or engine is stopped and will not
move.
plb4244_294
3
Public Law Board No. 4244 Award No. 294
Case No. 301
· Insure that on-track equipment remains at least 300 feet behind other on
track equipment while in traveling mode.
Exception:
On-track equipment
may be "bunched" to make movements over short segments of track such
as crossings at grade, moveable structures and control points. A job
briefing must establish the procedure with all involved employees. Ma
chines must be at least 50 feet apart during such movements.
If machines will be "bunched" when stopped, all employees must remain
clear of the track until the entire movement has stopped, unless otherwise
instructed by the employee in charge. After stopping, the lead machine
operator must do the following:
- Dismount the machine.
- Assume a position that is visible to a following machine operator
and anyone who could step into the path of the next approaching
machine.
- Spot the following machine using hand signals.
Each successive operator must follow this procedure to spot the next
machine.
· Use radio or hand signals to notify the operator of the following machine
when slowing or stopping on-track equipment during traveling mode. If
the following machine operator does not acknowledge the radio or hand
signal, stop, dismount the on-track equipment and proceed, clear of the
track, toward the following machine giving stop signals.
· Maintain at least 50 feet between on-track equipment while in working
mode unless job briefing establishes a shorter distance due to existing
working conditions. While in working mode, it is the responsibility of all
machine operators to maintain a safe distance between their machine and
other men and on-track equipment.
· Ascertain that a back-up alarm is activated and/or the appropriate whistle
signal has been sounded and that the distance to be traveled is clear of
workers and machines before making a back-up move.
BNSF Engineering Instruction (E.I.I 1.1.613
Individual roadway workers must:
· Follow BNSF's on-track safety rules and procedures.
· Avoid fouling a track except when necessary to perform their
duties.
· Wear high-visibility orange workwear when on or near the track.
At night, the workwear must be retro-reflective. (See MWSR Rule
S-21.1, "Personal Protective Equipment Requirements.")
plb4244 294
4
Public Law Board No. 4244 Award No. 294
Case No. 301
· Determine that on-track safety is being provided before fouling a
track.
· Refuse any directive to violate an on-track safety rule.
· Notify the employee in charge when making a good faith
determination that on-track safety procedures to be applied at the
work location do not comply with the MWOR.
E.1. 1.1.8
When on-track equipment is being used, workers and machine operators must
follow the guidelines below for maintaining safe distances to prevent machines
from contacting other machines and workers.
When machines must be spaced closer than guidelines require because of work or
travel conditions, the machine operators and the employee in charge must have a
thorough understanding of
· The specific task
· The conditions under w1tich the task will be done
· How the task will proceed
A. Work Zones Around Machines
Roadway workers must not enter a machine's work zone without first communicating with the operator to establish safe work procedures.
Note: Unless a different understanding is established through a job briefing,
this work zone extends from a point 15 feet in front of the machine to a point
15 feet behind the machine. The work zone limits on each side of the machine will be designated in the job briefing.
If a machine is approaching workers who are foul of the track, the operator must
communicate with the workers before getting closer than 15 feet to them.
B. Safe Working Distance Between Machines
The minimum distance between machines while working is 50 feet, unless a job
briefing establishes a different distance.
C. Back-Up Movements by Machines
Before making a back-up move, the machine operator must:
plb4244 294
5
Public Law Board No. 4244 Award No. 294
Case No. 301
· Verify that a backup alarm is activated and/or the appropriate horn
or whistle signal is sounded on machines so equipped.
· Observe that the track is clear of workers and machines.
E. I. 1.1.9
A. Maintaining Safe Traveling Distance Between Machines
On-track equipment must remain at least 300 feet behind other on-track equipment
while traveling to or from a work location. When a job briefing establishes
otherwise, machines may be "bunched" to make movements over short segments
such as crossings at grade, movable structures, and control points. The job
briefing must establish the procedure with all involved. Machines must be at least
50 feet apart during such movements.
B. Slowing or Stopping Machines
When slowing or stopping on-track equipment during travel, the operator must use
a radio or hand signals to signal the operator of the following machine.
· If using a radio, the lead operator must ensure that the following
operator has received and understood the message transmitted.
· If using hand signals, the lead operator must give a continuous
signal until the following operator has acknowledged that the signal
was observed and understood.
If machines will be "bunched" when stopped, all employees must remain clear of
the track until the entire movement has stopped, unless otherwise instructed by the
employee in charge. After stopping, the lead machine operator must do the
following:
1. Dismount the machine.
2. Assume a position that is visible to a following machine operator
and anyone who could step into the path of the next approaching
machine.
3. Spot the following machine using hand signals.
Each successive operator in the consist must follow this procedure to spot the next
machine.
plb4244 294
Public Law Board No. 4244 Award No. 294
Case No. 301
The Organization promptly appealed the Carrier's disciplinary decision to its Assistant
Director - Labor Relations.
The Organization argues that the Claimant was denied a fair and impartial hearing because
the Conducting Ofcer permitted written statements and hearsay evidence to be entered into the
record. The written statements were from Carrier employees, and the Carrier should have had
them available for cross examination, the Organization contends.
The Organization also argues that the record shows that the machine being operated by
the Claimant was heavily loaded, and had traveled over some flange lubricators, causing grease to
be deposited on the wheels and brake shoes of this machine. These circumstances resulted in the
Claimant's inability to stop his machine short of the preceding machine, although he shut its
throttle down and put its brakes into emergency application.
The Organization further argues that the Claimant had a clear record up to this point, and
the Carrier has not borne its burden of proof. But even if it done so, the discipline applied in this
case is "extreme, unwarranted and unjustified."
The Carrier rejoins that although the Traveling Mechanics who inspected the Claimant's
machine were not present for questioning, the inspection form was also signed by District
Roadmaster Christopher Wang, who did appear as a witness at the investigation, and who was
cross examined by the Claimant's representative. But, the Carrier points out, Mr. Wang was not
questioned about the issues in the report which he had signed, along with the Mechanics, as a
participant in the post-accident inspection.
The Carrier further addressed the Organization's contention with respect to the effect of
the flange lubricators. The Carrier states that this is an affirmative defense, and the Organization
has failed to carry the shifting burden of proof. It points out that the other machines in this group
traveling together did not experience braking problems.
The Carrier also points out that the Claimant testified that the brakes on his machine
worked satisfactorily both before and following the collision. Although it was alleged during the
course of the investigation that new brake shoes were mounted on the Claimant's machine
between Friday, when the collision occurred, and Monday, the next work day, the Organization
did not provide any work report, picture, or other supporting evidence. The Carrier suggests that
even if this unsupported assertion is correct, it does not mean that the brakes on this machine
were not working properly when the collision occurred. The Carrier denied the relief sought by
the Organization on the Claimant's behalf.
The Board has studied the lengthy transcript of testimony and evidence in this case, and
considered the arguments presented by the Parties.
plb4244 294
Public Law Board No. 4244 Award No. 294
Case No. 301
The Claimant was not inexperienced. He testified that he had been working as a Machine
Operator for six years. He had been running this particular machine for some time, and was
familiar with it. He said he was traveling more than the minimum required 300 feet behind Mr.
Rockbridge's machine. He was towing a heavily loaded push car behind his machine, and said
that as he entered an ascending grade, it was necessary to throttle up his machine to maintain
speed. When he topped the grade and it turned into a descending grade, he throttled down but his
speed increased. He observed Mr. Rockbridge slowing ahead of him and giving a stop signal. He
shut the throttle down completely, which automatically applied the brakes. When he perceived
that he would not be able to stop before colliding with the preceding machine, he released his seat
belt and jumped off his machine. He estimated it was running about 13 mp.h. when it struck Mr.
Rockbridge's machine.
This is the first disciplinary entry involving a matter of safety in the Claimant's personal
record. He did have two reprimands and a deferred suspension for unauthorized absences, but the
last entry was in 1997.
The Board is persuaded that the Carrier has the better position in this case. While the
allegation that the brake shoes were changed out over the weekend following the collision is a
circumstance which _could indicate that the shoes on the machine when the accident occurred were
overly worn, the fact remains that the Claimant testified that the brakes worked satisfactorily both
before and after the collision. The Organization did not request a recess to obtain the presence of
one or both Traveling Mechanics. If it was felt that their presence was essential, such a recess
should have been demanded, A refusal by the Carrier might have been at its own peril. Nevertheless, Mr. Wang was present, and he could have been examined on the brake shoe matter.
The Board also notices that a flange lubricator does not present an unforeseeable element.
A fallen tree, a trespasser, livestock, a stalled automobile, are not to be expected. That cannot be
said of a fixed part of the track structure, such as a flange lubricator. The Board further notices
that no other track machine in this group reported any loss of stopping ability because of the
presence of a flange lubricator. But this argument is a two-edged sword. If the machine's
stopping distance was adversely affected by the presence of the flange lubricator, that condition
would have dictated more than ordinary caution on the Claimant's part.
Although the Claimant's suspension for six months is a heavy penalty, the Board observes
that under the Carrier's Policy for Employee Performance Accountability, he alight have been
dismissed, but for his relatively good record. A rule violation that results in a serious collision or
a serious injury, is defined therein is one of the dismissible offenses.
The Claimant was competently represented in the investigation and the subsequent appeal
process, but in view of the evidence and the gravity of this matter, the Board cannot sustain the
Organization's claim on his behalf.
plb4244_294
8
Public Law Board No. 4244 Award No. 294
Case No. 301
AWARD
The claim is denied.
Robert J. Irvin, Neutral Member
R. B. We rli, Employe Member Thomas M. Rohling, Carrier M r
7~n
Date
r.~1
Date
pib4244_294
9