PUBLIC LAW HOARD No. 4381: Case No. 5
HP01HERi00D OF MAINTENANCE OF WAY EMPLOYEES
RAILROAD
1. Ire thirty (30) days suspension imposed upon Machine
Operator R. T. Ruiz for alleged "... violation of
Burlington Northern Pa
i 1
mad terry General and
Safety Rules (Nos. 62, 65 and 81) on June 7, 1985,
when you failed to stop your machine wdridr resulted
in the collision. ***", was arbitrary, unwarranted
and on the basis of unproven charges (System File
RD^rSP-131/AM~WB 85-12-30A) .
2. The Claimant's a-cup 3 Machine Operator seniority
date shall be restored, his record shall be cleared
of the charges leveled against him and he shall be
compensated for all wage loss suffered.
At approximately 2:45 p.m. on Friday, Jtme 7, 1985, a collision
occurred between a tamper operated by Mr. Robert T. Ruiz mind a stopped
tie injector. The accident occurred in the middle of a blind curve, the
dowry grade of the track was 2.2$, mind the weather conditions included
occasional
rain.
Mr. Ruiz was moving with two (2) heavily loaded push
cars. As a result of the collision, there was date to the equipment
and injury to several persons who were riding with Mr. Raiz. Subsequent
to am investigative hearing, Mr. Ruiz was disciplined with a thirty (30)
days suspension for allegedly operating his machine in an unsafe manner.
'ore organization has raised a amber of issues in its appeal of the
claim. First, the record clearly indicated that Mr. Ruin was aware of
the charges against him, and he and the organization prepared a substan
tial
defense. Second, there is nothing in the record drat indicates that
the investigating officer's duties deprived Mr. Ruiz a fair mind impartial
hearing. Thins, there is no evidence that Mr. Ruiz was treated in a
discriminatory
manner
compared with other persons involved in the
collision. In
summary,
we find that Mr. Ruiz was provided a fair and
impartial hearing.
Moving to the merits of this case, the Carrier has not established
by substantial evidence the charges of negligence. Moreover, there is
nothing in the record that would support a conclusion that poor judgement
or unsafe operating practices on the part of Mr. Ruiz caused the accident. Certainly, running the machine without an operative windshield
wiper was unwise, but there is nothing in the record that indicates that
this condition aritributed to the collision.
The Carrier has riot convincingly established that Mr.
Ruiz was
traveling at an unsafe speed (under very adversee conditions). Mr. Ruiz
had no reason to know that the tie injector had stopped ahead of him.
Moreover, the tie injector was parked in the middle of a blind curve. No
flagman had been posted to signal that the tie injector was stopped.
Even at the reduced speed Mr. Ruiz was moving, there was insufficient
distance for the machine to stop without hitting the tie injector. The
weather, the grade and the heavily loaded
machine sustained
the forward
moment=. There is no evidence that the braking system was functioning
inadequately or that Mr. Ruiz failed to brake as soon as possible.
Mr.
Ruiz is not guilty of
negligence nor
did
he
operate the tamper
in an unsafe manner to cause the collision.
`fhe Claim.
is sustained. Mr. Ruiz's seniority date shall be
restored; his record shall be cleared of the charges leveled
against him; and Mr. Ruiz shall be compensated for all wages
lost as a result of the disciplinary suspension.
Ronald L. Miller
Chairman
and Neutral Mewber
Maxine Timberman
Carrier Member
Byte G. Glover
Organization Member