PUBLIC LAW BOARD NO. 4338
PARTIES) UNION PACIFIC RAILROAD COMPANY
TO )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM:
(1) The discipline (90 day suspension assessed Track Machine Oper
ator D. N. VanDyke for alleged violation of various company rules
as indicated in Mr. C. M. Funk's letter of December 20, 1988 was
arbitraty, 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 by letter dated November
9, 1988 to attend an investigation in Gering, Nebraska on December
1, 1988 to determine his responsibility, if any, in connection with
an incident that occurred while he was working as the Track Machine
Operator of Ballast Regulator BR-159. Gang No. 9081, facing east on
No. 1 Track when his Ballast Regulator was struck by Train NPOA-O8,
Extra 2520-3099-3670 West on No. 2 Track at MP 406.73, Sidney Sub-.
division, Cheyenne Division, which resulted in damage to Company
equipment indicating a possible violation of General Rules A, B, I
and K and Safety Instructions 4000 and 4001 of Form 7908, Safety,
Radio and General Rules for All Employees.
By agreement between the parties the investigation was held in
North Platte, Nebraska instead of Gering, Nebraska. The Union
objected to the hearing for the reason that the General Chairman
and Assistant General Chairman of the territory involved had not
received a copy of the charges preferred against claimant VanDyke.
C. M. Funk, the hearing officer, stated that if the Union so desired, they would postpone the investigation. The Union deferred
the issue to the claimant, and the claimant stated he preferred to
proceed.
K. Durrant, Track Supervisor, testified that on November 9 at
approximately 8:45 a.m. the claimant was running the BR-159 behind
a Jackson 6700. Mr. Durrant stated that he was not at the location
when the Ballast Regulator was struck by the train, but he did hear
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Award No. 31
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radio communication between the claimant and Mr
Foreman-Safety.
Mr. Durrant testified that when he arrived at the scene-approx=--imately five minutes after the accident occurred, he asked the
claimant if he knew the train was coming, and the claimant acknowledged the train and knew it was a westbound. This witness did
state that the claimant said he was not addressing him but was
addressing Ron Markle.
The claimant testified there were eastbounds earlier
out of his machine for a while, and when he got back
was another eastbound called. He stated that he did
that eastbound.
The claimant testified that the eastbound had been changed to a
westbound without his knowledge, and he was facing east but was
right against the other machine, so he had no vision of a westbound
train.
The claimant then stated that when he didn't see an eastbound train
he started backing up and lowering his wing which
was
probably half
way down when he saw the headlight, and he wasn't very far from
the machine ahead of him, maybe a half pole or so, and it was too
late.
The claimant testified that he acknowledged an eastbound train but
did not acknowledge the westbound train. The claimant testified
it was a normal thing with the other employees that the guys on
the outskirts of the gang let each other know when they saw the
headlights because they have a clear path of vision. He stated
that on that particular date the regular operator for the Regulator
up front was gone, and there was a fill-in they were using to plowout, and he was off his machine and could not let him know about it
either.
General Foreman of Safety R. Markle testified that then John Santos
the Assistant Foreman, told him he better come down to VanDyke's
Ballast Regulator. He testified that approximately 13 or 14 minutes earlier, he had called the claimant and told him they had a
westbound train coming. He stated he called the two Ballast Regulators, the double broom.
Mr. Markle testified that it was not customary for the Ballast
Regulators to work with their wing inside between the two main
lines without notifying him between trains after they have been
notified a train is coming unless they contact somebody. He also
testified it was normal procedure for the train machine operators
to notify other machine operators if they see a light coming or a
headlight of a train.
Markle, General
and be was
in, there
acknowledge
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Award NO. 31
Page 3
Mr. Markle also testified that he was required to keep a record
of the trains that go by during the course of a day and the people
that be notifies. He further testified that on the date in question the claimant acknowledged the westbound train.
R. G. Hardesty, Manager of Maintenance of Way work equipment,
testified that he was approximately 37 miles away when the accident
occurred. He stated that when he arrived be asked the claimant if
he had been notified of an approaching train, and the claimant said
that he had and he had acknowledged such, but the train did not get
there as quick as it usually did, and he started to lower his bucket.
Mr. Hardesty estimated the damage to be approximately $12,000 to
$14,000.- He testified that the claimant stated: "Well, what am I
gonna get out of this?" On further examination Mr. Hardesty stated
the claimant may have said: "What normally happens in this situation?"
John Santos, Assistant Foreman with the 9081 Section Gang, testified
that he was about five pole lengths east when the Ballast Regulator
was struck by the westbound train. He stated he arrived there about
five minutes after it happened, and when he talked to the claimant,
the claimant stated he knew the train was coming. He also stated
that when the General Foreman of Safety had asked for an acknowledgement of the westbound train, he heard the claimant's acknowledgement.
He stated he had heard the acknowledgement of all the operators.
The claimant testified that he asked Mr. Santos when he drove up in
the Suburban: "Well, well, did you hear me acknowledge it?" and
Mr. Santos answered: "No." The above was in the form of a question
and Mr. Santos said "O.K."
Later the claimant requested that Mr. Santos be recalled, and he was
asked
if
he could tell him the line of trains. Mr. Santos replied
he was pretty sure there were three eastbound and then a westbound.
Mr. Santos further stated that he would like to clear up an earlier
statement where he had said "No." He stated this was because the
Track Supervisor hollered at the claimant that a westbound was coming, and the claimant did not answer at that time, but prior to
that he distinctly remembered your answering Ron Markle with an
acknowledgement.
The claimant closed by stating that he really believed he did not
know the train was coming.
The Board has carefully reviewed all of the above testimony of
record. The evidence is sufficient for the Carrier to find that
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the claimant acknowledged a westbound train. The Carrier was justified in reaching a conclusion that when the westbound did not appear
immediately, the claimant started backing up and lowering his wing.
The Carrier is justified in reaching a decision that the claimant
was looking for an eastbound instead of a westbound train.
There is no question but that discipline is justified. However, the
Board does not comprehend the letter of discipline dated December
20, 1988 wherein Mr. Funk stated: "In consideration of the severity
of the offense and in consideration of your prior discipline record,
I am now ordering that you be assessed a ninetydayactual suspension."
In the claimant's approximately four and one-half years of service,
he had received one letter of reprimand for being absent without
authority. If the letter of reprimand had been concerned with the
violation of a safety rule, such could reasonably lend itself to
more severe discipline herein.
Actually, a ninety day suspension is not excessive for the events
involved herein. However, the ninety days was assessed in consideration of the severity of the events and in consideration of
the claimant's prior discipline record.
This is a good discipline record when an employee has worked for
four and one-half years and has only one minor entry of this nature.
This justifies a minor reduction in the discipline assessed. The
Carrier is directed to reinstate the claimant effective March 1,
1989.
AWARD: Claim sustained as per above.
ORDER: The Carrier is directed to comply with this award within
thirty days from the date of this award.
DATED: March 14, 1989.
Preston J Moore, Chair
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