- AWARD NO. 20
CASE NO. 20
PUBLIC LAW BOARD NO. 4338
PARTIES) UNION PACIFIC RAILROAD COMPANY
TO )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM:
(1) The discipline (30 day suspension) assessed System Gang 9012
Bus Operator D. C. Rudat for alleged violation of various Company
rules as indicated in Mr. B. M. Brown's letter of May 5, 1988 was
arbitrary, capricious and unwarranted.
(2) The claimant's record shall be cleared of the discipline re
ferred to in Part (1) hereof and he shall be compensated for all
time lost.
FINDINGS: This Public Law Board No. 4338 finds that the parties
herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, and that this Board has jurisdiction.
In this dispute the claimant was notified to attend an investigation on April 18, 1988 to develop the facts and determine his
responsibility for his alleged unsafe operation of Gang Bus 62232
over the railroad crossing at Walcott, Wyoming on March 21, 1988
which resulted in a "near miss report" being filed by the Engineer
of 9114 West.
The transcript contains 83 pages of testimony
which has
been considered and studied by the Board.
The Carrier received a report that the conductor and engineer on
KLLB6-19 narrowly missed striking a bus
which was
transporting
workers. Perhaps it should be noted that "9114 West" is the
clearance for the train movement. KLLB6-19 is the symbol for the
entire train.
The engineer on Train KLLB6-19 on the date in question was R. L.
Dunivent. He testified they were approaching Walcott at 37 miles
per hour, and there was a blue Chevy S-10 that went across the
tracks at the crossing, and a bus followed them across the tracks.
Engineer Dunivent further testified that the bus went
through with
the flashing lights on. He stated he was not certain
whether the
lights were flashing when the blue Chevy truck went
through, but
he was sure the lights were flashing when the bus went through.
He testified that he knew this was the bus the gangs were on. He
testified the bus did not stop nor slow down.
L4338
- Award No. 20
- Page 2
Conductor Frank Conde, who was on the train in question, testified that he observed the Company bus ignore a red flashing
signal at the crossing at RP 662, Walcott. He stated that in
his judgment the bus did not clear by more than a few feet as
he could see it from his side of the engine. He testified the
bus did not stop at the crossing.
Conductor Conde further testified that he knew what Carbon County
busses looked like, and further that they used to haul children
there but not any more. He stated he hadn't seen a school bus
at that location for several years. He stated the bus in question
was definitely a Union Pacific bus. He testified he did not know
who was driving the bus.
Special Agent Cain testified that he received a call from Mr. Hampton, and as a result of that call, he proceeded to Walcott at
approximately 1430 hours or 2:30 p.m:;-and at that time he did a
survey. He requested permission to talk to the people who were
involved in the alleged near miss at Walcott Junction.
Agent Cain stated that when they returned to the office, he took
ten written statements from employees who were on the bus, plus
statements from the claimant and assistant foreman. He testified
some of the statements he received stated the claimant came to a
stop and others said he did not. He testified that the claimant
stated he was the driver of the bus on the date in question.
The transcript contains the statements of the passengers in the
bus, as well as the claimant who was driving the bus. All of the
statements have been reviewed, as well as the testimony therein.
There is considerable conflicting testimony. Most of the passen
gers testified the claimant stopped and they did not believe it
was dangerous. Several passengers testified the claimant slowed
down, but the lights were flashing before he started across.
The claimant himself testified that he stopped, that the lights
were not flashing, and the vehicle in front of him was not a
blue Chevy S-10 but was a Mitsubishi.
There also was a great conflict in testimony concerning the distance the train was from the crossing.
The Board has reviewed all of the testimony and carefully considered all of the evidence presented. It is sufficient to say
there is adequate reason for the Carrier to find that the claimant was guilty as charged. There is no justification for setting
the discipline aside.
AWARD: Claim denied.
Lf338-Award No. 20
Page 3
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DATED: August 1, 1988
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Preston J. Moore,rChairman