o CASE N0. 10


PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 _TO ) - __VS -
 DISPUTE ) BURLINGTON NORTHERN RAILROAD COMPANY
 STATEMENT
 OF CLAIM: Claim of B. R. Highfill for payment for all time lost
 account suspended from the Carrier's service from Dec--
 ember 2, 1986, through December 9, 1986, and that the
 charge be removed from his service record.
 FINDINGS: The Board, on consideration of the whole record and _
 all the evidence, finds that the parties herein are
 Carrier and Employee within the meaning of the Railway Labor Act, as -
 amended, that this Board is duly constituted by Agreement dated-April
 10, 1987, that it has jurisdiction of the parties and the subject mat-s
 ter, and that, pursuant to the Agreement dated April 10, 1987, oral
 hearing by the parties, including Claimant, has been duly waived.
Under date of January 14, 1987, Claimant B. R. Highfill was advised that "as the result of the investigation conducted in Memphis, Tennessee on January 6, 1987 by General Roadmaster R. P. Wiese, your 8-day suspension from service by RoadmasterLang on Dec. 2, 1986 isupheld.

 "Said investigation showed clear violation of Rules 70(a) and 70(b) of the Bur- -
 lington Northern rules of the Maintenance of Way in connection with the two on -
 track machines you were operating nearly colliding with Norfolk Southern Train
 552 at Jasper, Alabama on December 1, 1986."

 Rule 70(a) reads:

        "When a signal at an Automatic Interlocking displays a red aspect, on track equipment that shunts the track must stop before passing the signal and remain there while employee in charge operates the time release according to the instructions posted in the release box.If the signal indicates proceed after the instructions complied with, movement may pass the signal and move over the crossing. If the signal does not clear, movement beyond signal and over crossing must not be made until the employee at the crossing is sure there is no train or engine move- - ments approaching on any route and a proceed hand signal is received."

                                              AWARD N0. 10(p.2) CASE N0. 10


Rule 70 (b) reads-: - _ -

        "When a signal at a manual interlocking displays a red aspect, on track

        equipment that shunts the track must stop before passing the red signal.

        The employee in charge of the machine must communicate with the Control

        Operator and be governed by his instructions. If communications have

        failed, movement through the interlocking may only be made after lining -

        all switches for the route to be used and the machine that occupies the

        track within the interlocking limits -.but clear of any conflicting routes

        for a period of ten minutes."


The transcript of investigation shows the following testimony by Roadmaster L. B. Lang:

    "Q. Alright. Did an incident occur on December 1, or was an incident brought to ,,our attention? A. Yes, it was.


Q. By whom? -
 A. By the Road Foreman for the Southern.

 Q. Would that be the Norfolk and Southern? -
 A. Norfolk Southern, yes.

 Q. Norfolk. Southern Railroad. Could you describe to me what happened?
 A. He came - I was in the Tool House at Jasper, out behind the Depot, and he
 came out there and said that he wanted to talk to the Foreman, whoever was
 in charge of the Gang out there, and I asked him what the trouble was. He
 didn't know who I was, and 7 didn't know who he was. He told me that one of
 the machines had just about been hit at the railroad crossing there at the
 Interlocker at Jasper. Of course I told him who I was and he told me who he
 was, and that's basically how I found out about it.

 Q. Well, what did he say happened?
 A. He said that the Southern Train came around there, and when they got into the
 Interlocking limits they had a clear signal and then before they got to the
 Approach Signal it went red and cleared right back up in their face. They
 came around there, and about the time they got to the Signal at the Interlocker
 itself it went red, and of course they were right on it. He said when they
 went by - there's a little curve there - he said they saw the ballast regulator
 about 3 or 4 foot from the railroad crossing.

 Q. Alright, subsequent to this visit, did you request this gentleman to give you a
 statement of what he told you?
 A. Yes sir.

 Q. And did he give you such a statement? A. Yes he did.

                                                  f-I3~iD-~D

                        AWARD N0. 10 (p. 3)

                        CASE N0. 10


Q. Is that the statement the gentleman gave you?
    A. Yes sir, it's a statement from D. G. Orazine, the Road Foreman of Engines for the Norfolk Southern Railroad ,s and it's notarized.


Q. Would you, for the record, read it.
 A. It's dated December 11, 1986. It says:

    To Whom it May Concern:


    On December 1, 1986, approximately 9:25 AM Southern Train 552, eastbound at Jasper, Alabama, Mile Post-86.4 NA, nearly struck BN track equipment at BN Interchange, Jasper, Alabama.


    No. 552 reported near miss with two BN track machines. Engineer reported-lst Machine 05-0052 (Double Broom) had crossed in front of engine and was missed only five (5) feet by train. Another machine BNX 6-0228 Regulator was north of Southern main line within interlocking limits. No. 552 had clear signal at Jasper.


    Road Foreman of Engines D. J. Orazine arrived on scene shortly after incident and talked to Roadmaster Bruce Lane about incident. Both called Machine Operators Bob Highfill of 05-0052 and Jimmy Young of BNX 6-0228 into office and found that no one had operated time release on interlocking at Jasper. Operator Highfill stated he heard approaching train and then crossed interlocking in front of Southern Train. Operator Young heard train but stopped north of Southern main line as train was three (3) car lengths from crossing.


    No BN track people had attempted to operate time release to set signals against Southern trains. Tape from interlocking machine shows:


    9:16 AM Southern approach occupied by Southern Train No. 552.


    9:24 AM BN interlocking occupied momentarily then cleared for Southern train.


    9:26 AM Southern Train occupied interlocking on clear signal.


    9:26 l0/AM BN O.S. Circuit occupied by BN track machine.


    9:27 AM Southern Approach cleared.


    9:30 AM Southern cleared interlocking.


    9:33 AM BN O.S. Circuit cleared." ****


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                                    AWARD N0. 10 (p. 4)

                                    CASE NO. 10


Claimant B. R. Highfill was snot present at the investigation held on January 6, 1987. The transcript reports:

          "Mr. Wiese (Investigating Officer): Mr. Spears (General Chairman, BMWE), Mr. Highfill-is not present. Do you have any knowledge why he is not present?


Mr. Spears: Mr. Highfill was under the impression that he agreed to go back to
 work without pay for time lost and you couldn't handle his case any
 further. But after I've arrived here at Memphis today, I found out- -
 that that's not the case and it's a misunderstanding. Therefore,
 I'd like to go ahead and hold this investigation on his behalf also."
 (Tr., p. 1).

 The evidence of record shows beyond question that no one--and this includes Claimant B. R. Highfill--had operated time 'release on interlocking at
 Jasper, and the evidence is clear that the Double Broom operated by Claimant had -
 crossed in front of engine of Southern Train No. 552 and was missed by only five
 feet.

 The record shows substantial probative evidence in support of the Carrier's determination that Claimant violated Rules 70(a) and 70(b) of the Burlington Northern rules of the Maintenance of Way. Although the Foreman was in charge of seeing the machines over the Interlocks during the period involved, this did not relieve Claimant of his own responsibility to comply with the rules. Claimant's failure was a grave violation, resulting in a near-collision which might have cost him his life. Under the circumstances of this case, the discipline of eight (8) days suspension was not excessive.

          1. The Carrier was not in violation of the Agreement.


          2. The claim is denied.


          CHAIRMAN NEUTRAL MEMBER OF PUBLIC LAW BOARD 4340


Dated: j.~,- / Y - _ __ _ . __ - -
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