NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD N0. 4370
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD NO. 54
Case No. 54
STATEMENT OF CLAIM
Claims (1) in behalf of J. L.-Reed, Social Security
Number 462-82-7021 and (2) L. L. Egerton, Social Security
Number 466-48-3972, that their suspension from service
for 5 days commencing July 18, 1994 and continuing
through July 22, 1994 for alleged violation of Rules 1.4,
1.6, 6.50, 6.51, 21.1 and Safety Rules 1 and 567 is
arbitrary, capricious, and on the basis of unproven and
disproved charges and in violation of Rule 26 of the
Agreement. It is respectfully requested that the
claimants now be compensated for all wage loss suffered
(5 days) and the charges and discipline be stricken from
claimants' records.
F I N D I N G S
On May 17, 1994, Claimant Egerton was operating a Tamper and
was followed on the track by Claimant Reed operating a Ballast
Regulator. At some point, Egerton found the Tamper's electromatic
hose was losing oil, and he determined it was necessary to stop the
machine. He testified that he had put on flashing lights to warn
the Ballast Regulator of the stop. Nevertheless, the Ballast
Regulator did not come to a stop in time to prevent a collision of
the two machines, causing some damage to both.
Of the many rules cited by the Carrier, to be discussed
further below, there isone fully familiar to both Claimants -that on-track machines in sequence should remain at least 300 feet
apart. Shortly before the collision, the two machines had passed
through a crossing, where, after stopping for clearance, it is
apparently
accepted that
two machines can be much closer together.
This, however, did not thereafter prevent the Ballast Regulator
from maintaining the 300-foot distance.
At the time the Tamper stopped, Reed, operating the Ballast
Regulator, stated he was a "little over 200 feet" behind the
Tamper. He stated that the oil on the tracks from the leaking
Tamper resulted in making it more difficult to stop. As to the
Tamper using lights to warn the Ballast Regulator, Reed stated:
He could have flashed 'em, but I didn't see him
flash 'em. So I can't say he didn't flash 'em.
At the hearing and in the disciplinary notices, the Carrier -
cited many rules which the Carrier contends were violated by the
Claimants. From the outset, the organization objected that the
hearing notice had not specified any rules of which the Claimants
were accused of violating. The Claimants, however, were made fully
aware of the incident to be involved in the hearing and thus had
fu11 opportunity to prepare a defense. Citation of rules
allegedly violated is clearly helpful in hearing notices. Here,
-2-
however, failure to do so did not make for -an--improper hearing,
although there are. instances where such citation-is essential.
In his disciplinary notice, Egerton was charged with violation
of Maintenance of Way Rules 1.4 and -1.6 and Safety and General
Rules 1 and 567. Reed was charged with violation of all these,
plus maintenance of Way Rules &.50, 6.51 and 21.1. Of the four
rules which the Carrier says that Egerton violated, the Board finds
no or insufficient proof as to this contention.-Noone disputed
that Egerton had to stop his machine, based on his losing oil. He
claims to have put on his flashing lights to warn the Ballast
Regulator. It is difficult to determine what_other course he could
have followed. -As to the Rules cited against Reed, the Board
agrees that he was in violation of Rules 6.50 and 6.51, both of
which are concerned with the distance which must be maintained
while following another on-track machine. Although the oil-slick
track may well- have impeded the Ballast Regulators ability to
stop, it is not unreasonable that it could have done so had the
specified 300-.feet distance been maintained.
AWARD
Claim #1 (Egerton) sustained. The Carrier is directed to make
this Award effective within 30 days of the date of-this Award. -
Claim #2 (Reed) denied. -
04
HERBERT L. MARX, Jr., Neutral Referee -
NEW YORK, NY
DATED: October 1B, 1995