Brotherhood of Maintenance of Way Employes
 PARTIES TO DISPUTE: and
 BNSF 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. Kenneth W. Cason, entered the Carrier's service in 1972, in its Maintenance of Way Department. He was working as a Machine Operator at Rome, Texas, on July 20, 2004, when the ballast regulator he was operating was struck by another track machine, resulting in damage estimated from $200.00 to $1000.00. No personal injuries were suffered by anyone. Consequently, on July 26, 2004, the Claimant and Mr. Mark O. Lindley, who was operating the other machine, were notified of an investigation on August 4, 2004,

The investigation was postponed by agreement of the Parties until August 18, 2004. A transcript of testimony and evidence taken therein is in the record before this Board.

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 Public Law Board No. 4244 Award No. 342
 Case No. 348

 The collision which was the subject of the investigation was described in the testimony of the two principals, the Claimant and Machine Operator Lindley. Surfacing Gang Foreman Doug K. Bennett was in charge of the employees operating the machines, and was present when the collision occurred, but did not view it, because he was otherwise occupied at the time. He offered the following testimony about the collision:

Mr. Bennett said his first reaction was to determine whether anyone was injured. All involved employees said they were not hurt. He then tried to determine why the collision occurred. His testimony continued:

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 Public Law Board No. 4244 Award No. 342
 Case No. 348

 The record indicates that at some time previously, the ballast regulator operated by the Claimant had its body reversed. It is equipped with its own turntable, which may be used while on rails to elevate the body and turn it from one direction to the other.

 Mr. Lindley testified that he did not know that the Claimant intended to stop after entering the main track. He gave this account of the events under investigation:

The Claimant presented a closing statement beginning at Transcript page 28, which best summarizes his view of the events:

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 Public Law Board No. 4244 Award No. 342
 Case No. 348

In the Transcript, the Board notices, objection was initially entered by Mr. Lindley's representative, contending that the notice of charges was "so general and vague as to preclude the charged employees and their Representatives from adequately being able to prepare a defense." During the course of the investigation, a further objection was entered, when the Conducting Officer first began questioning the Principals with respect to Maintenance of Way Operating Rules and the Carrier's Engineering Instructions. All such objections were noted in the transcript, and the investigation continued.

 On September 8, 2004, the Carrier communicated its decision on the investigation's findings to the Claimant, reading in pertinent part as follows:

The Rule and Engineering Instruction cited in the above letter read as follows:

 Maintenance of Way Operating Rule 1.1








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 Case No. 348
 · Before beginning work
 · Before performing new tasks
 · When working conditions change

Engineering Instruction 1.1.9. Paraeraph B




















The Carrier's disciplinary penalty was promptly appealed to its Labor Relations Department. The Organization argues that the Claimant was not charged with any offense, and questions the fairness of charging rule violations in the hearing which were not originally cited. It also questions the fairness in the multiple roles occupied by the Conducting Ofcer. It states that he issued the notice of investigation, conducted the investigation, acted as prosecutor, presented testimony to support the alleged charges, sat in judgment on his own testimony, and imposed the discipline.

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 Public Law Board No. 4244 Award No. 342
 Case No. 348

 The Organization further argues that the Claimant had informed Mr. Lindley, prior to beginning their movement, that he would stop at the first level segment of main track to turn his machine, and Mr. Lindley acknowledged his understanding. Before starting to dismount preparatory to turning the ballast regulator, the Claimant observed the following tamper stopped. Although it began moving again, the Organization believes that a mechanical malfunction of the brakes resulted in Mr. Lindley's inability to stop his machine before striking the Claimant's machine. It contends that the accident was caused by events beyond the Claimant's control, and even if the charges were proven - which it denies - the discipline is excessive.

 The Organization also points out that Mr. Lindley, whose machine actually struck that of the Claimant, was only assessed a Non-Serious ten-day record suspension.

 The Carrier rejoins that the Claimant was afforded a fair and impartial hearing and none of his due process rights were violated. It states that the Agreement's Discipline Rule does not require that rules be listed in the notice of charges.

 The Carrier argues that it developed substantial evidence that the Claimant failed to inform Mr. Lindley that he would be stopping to turn his machine immediately after entering the main track. Had he informed him of his intentions, as required to do, the collision could have been avoided.

 The Carrier also argues that there is no disparate discipline in this case. It believes the Claimant bears a greater responsibility for the collision, because his stopping on the main track was a change of plans, about which he informed no one.

 The Board has carefully considered the transcript of testimony and evidence in this case, and the Parties' respective arguments. We shall first address the procedural issues raised by the Organization.

 The stated purpose of the investigation was to "ascertain the facts and determine responsibility . . . in connection with alleged collision. . ." This notice identified the machines by type and company number, and named a date, time, and place of the collision. Rule 13(c) of the Parties Agreement sets forth the agreed-upon notice requirements:

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 Public Law Board No. 4244 Award No. 342
 Case No. 348

 This rule does not require that a specific rule infraction be stated in the notice and, indeed, if the notice stated something specific, such as, "You failed to conduct a job safety briefing in accordance with Maintenance of Way Operating Rule 1.1," it might be argued that the Claimant's responsibility had been prejudged.

 Third Division Award 18620 addressed a case in which the sufficiency of the investigation notice was questioned. This Award states,

The claim in the above-cited case was sustained because the notice contained no date of the alleged offense, and the claimant was on a medical leave of absence when the offense occurred. In the instant case, however, those deficiencies are not present.

 The representatives for the Claimant and Mr. Lindley objected when these Operating Rules were entered into the record. The Board believes the objection is not well taken. As this Board observed in its Award No. 268, "Employees are deemed to have knowledge of the Rules which govern their employment. If unrelated Rules are raised for the first time during the course of the investigation, there might be merit to the objection, but not in this case." A similar issue was discussed in this Board's Award No. 323.

 The Organization further charges that the Conducting Offcer in the investigation occupied multiple roles, in that he issued the notice of charges, conducted the investigation, acted as a prosecutor, presented testimony, sat in judgment of his own testimony, and imposed the discipline. The transcript shows the Conducting Offcer's title as "Acting Division Engineer," but the notice was issued in the name of the Division Engineer. It's reasonable to suppose that the Conducting Offcer actually issued the notice, but that has often been done in other cases heard by the Board. This and other boards have held that certain multiple roles do not constitute reversible error. An officer may not present testimony as a witness, and then continue as Conducting Offcer, nor may he sit in judgment on his own testimony. The Organization suggests that is exactly what occurred here. The manner in which this supposedly occurred involved a series of questions by the Conducting Offcer:

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 Public Law Board No. 4244 Award No. 342
 Case No. 348


















At that point, the Conducting Officer began reading Rules and Engineering Instructions into the record, and inquiring whether Mr. Lindley was familiar with them. An objection was entered by the Claimant's representative, who suggested that the Conducting Officer was formulating a charge based on evidence already presented, thereby naming those Rules related to the acquired evidence. The Conducting Officer responded, "These are some rules that I think pertain to this hearing after determining the facts here at this hearing. Yes, sir." [Transcript page 20.1 The representative then charged that the Conducting Officer was acting as a witness for the Carrier, and he was asked to disqualify himself as Conducting Officer. The same objections were renewed when the Claimant was called upon to present testimony.

 The line is a fine one. The Conducting Officer would have demonstrated a greater degree of perceived impartiality had he used a Carrier witness, the Roadmaster for example, to bring these rules into the investigation record. However, many cases which have been reviewed by this Board have had the Carrier's rules introduced by the Conducting Officer or by a witness, and the result is the same, regardless how it gets into the record. The error is not so grievous that it would change the outcome, but those conducting investigations should avoid the very appearance of partiality and bias.

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 Public Law Board No. 4244 Award No. 342
 Case No. 348

 The Organization argues that the Claimant informed Mr. Lindley of his intention to stop after entering the main track, and Mr. Lindley acknowledged his understanding. The record does not support that argument, but rather indicates a failure to communicate the Claimant's intentions to Mr. Lindley. On Transcript pages 28-29, the Claimant made the following statement: "[T]hat morning early I told Mr. Bennett, I said, `When we get on the mainline I want to turn my machine.' I didn't mention that to Mr. Lindley at all." [Underscoring supplied.] See, also, Question and Answer No. 98, quoted above, wherein Mr. Lindley stated that he was not notified the Claimant was going to stop his machine.

 Foreman Bennett testified that there was no job briefing conducted to cover the movement of the machines from the siding, nor spacing of the machines while traveling to the site of their work. (Questions and Answers Nos. 43 and 44.)

 The question of whether a brake malfunction resulted in the collision was thoroughly addressed during the course of the investigation. Mr. Bennett said that as far as he knew, the brakes were working properly. (Q. & A. No. 80.) He further stated that Mr. Lindley did not mention the brakes were not working properly. (Q. & A. No. 90.)

 Mr. Lindley stated, "[E]verything seemed to be working normal." (Q. & A. No. 99.) But on cross examination, he said that he had had some brake trouble "a week or so before," and added,

He further testified that when they moved the machines back into the siding at Rome, he replaced two brake shoes and a leaking brake cylinder. (Answer No. 124.)

 Although the discipline assessed Mr. Lindley is not the subject of review by this Board, his culpability is relevant to the Claimant's case. He was disciplined for violation of Maintenance of Way Operating Rules 1.1 and 6.50, and Engineering Instruction 14.3.3A. Rule 6.50 requires that on-track equipment must move at a speed that will allow stopping in one-half the range of vision. Engineering Instruction 14.4.3A requires that on-track equipment be spaced 50 feet apart while working and 300 feet apart while traveling.

 The Board concludes that the Claimant violated Rule 1.1 by his admitted failure to hold a job safety briefing for the purpose of apprising Mr. Lindley, the operator of the following machine, that he would stop on the main track for the purpose of turning his machine. He also violated Engineering Instruction 1.1.9 when he failed to use a radio or hand signals to signal the operator of the following machine when he stopped. The Board is not persuaded by the Claimant's argument that his machine was in neither the working mode nor the traveling mode when he stopped to turn

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 it. While proceeding from the siding at Rome to the site of their work, the machines were traveling.

 Clearly, this Board cannot make a final and binding determination as to Mr. Lindley's responsibility for the collision, insofar as his appeal rights are concerned, and the findings in the instant case must not be cited in any case which Mr. Lindley may have before any other Board. Having said that, however, this Board is persuaded that Mr. Lindley shares responsibility for the collision in his failure to hold a job safety briefing, his failure to move at a speed that would have permitted him to stop within one-half his range of vision, and to maintain an interval of 300 feet while traveling. The Board is not unmindful that Mr. Lindley alleges that his brakes didn't function as he expected them to, but a safer interval would have easily allowed him to stop before striking the ballast regulator, despite the alleged brake problem He said, himself "If I'd had four more feet I probably would of stopped." (Answer No. 124.)

 These responsibilities on Mr. Lindley's part, while beyond the scope of this Board's jurisdiction, are quite relevant to the Claimant's case, because the Organization asserts that the discipline assessed the two Principals was disparate. The Board agrees. In view of their shared responsibilities for the collision, the Board can see no reason for assessing differing degrees of discipline. The collision was preventable had either or both complied strictly with the several Rules applicable to their movements. Although the Claimant is not without responsibility for the collision, and the Carrier has borne its burden of proof, the 20-day record suspension will be reduced to a ten-day record suspension.



Robert J. Irvin, Neutral Member
 J
 R. B. ehrli, Employe Member William L. Yeck, Carri ember

 Date

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