PUBLIC LAW HOARD No. 4381: CASE No. 6
FOOD OF MAZNIBNWCE OF MY EMPEAYEES

 AND

 BLJRLIN= NOTaIIERN RAVIZOAD MANY


    1. The thirty (30) days of suspension imposed upon Machine Operator J.R. Plhitver for alleged violation of Rules 600 and 602, was arbitrary, unwarranted, without just and sufficient cause and on the basis of unproven charges (System File S-S394/AMM 86-01-313) .


    2. the Claimant's record shall be cleared of the charges leveled against him and he shall be crmpensated for a17. wage loss suffered.


                  FI1= OF = BOARD


On September 29, 7985, the Claimant, Mr. J.R. Wlitver, was assigned to operate a locomotive =ate. In the course of operations, the crane overturned: Mr. Yiitver sustained a back injury and the crane was extensively damaged. Based upon its contention that Mr. Witver was negligent in the performance of his duties, the Carrier suspended Mr. Thitver for thirty (30) days for allegedly violating Rules 600 and 602.

 the Carrier argues that Mr. Whitver's claim is moot because he signed a release that states in part:

    "I release and fever discharge Burlington Northern Railroad Cony and all other parties whrlnsoever from all claims and liabilities of every kind or nature, ..."


It is clear from the record that the release pertains to liabilities in connection with and arising cut of the accident of September 20, 7985 under the Feral Employee's Liability Act. The Carrier has not convincingly established that it was the mutual intent of the partties to apply the release to claims filed under Rule 42 of the current EME-&1 Agreement.

 We find m procedural defects in the handling of this claim nor in the conduct of the investigative hearing. Mr. Whitver was provided a fair and ;, part; al hearing. MiLs matte must be decided on its merits.

 Tire Carrier has conv= i mly established, primarily through the testimony
 of Manager of Gangs J.A. Otmart, that the claimant's negligence in the
 operation of ccntrols was the cause of the accident. Me CnTani.zation
 properly argues that simply because an accident occurred, it does not
 follow that Mr. Nhitver was negligent. FIaaever, the Organization has not
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ovexcome the persuasiveness of Mr. mart's analysis, especially with regard to the engaged load line lever. Furthermore, there is m evidence of record that a mechanical defect contributed to the accident.

 We have considered Mr. W.itver's length of service and vac record, and conclude that discipline has served its purpose in this matter.

 The entry of the disciplinary suspension should be removed from Mr. ilitver's record, however he should not be made whole for any lost wages due to the disciplinary suspension.

                Ronald L. Miller

                Cha. i rman and Neutral Member


Maxine Tjrbprman G. Glo~er
 Carrier Member ' tioa Member
 t~ S_~ c~c~ -

                Date

4381-6

CARRIER'S DISSENT TO AWARD NO. 6

PUBLIC LAW BOARD 4381


Contrary to the Board's findings, it is not clear from the record that the release (signed y Claimant Whitver) ' pertains to liabilities in connection with and arising out of the accident of September 20, 1985, underthe Federal Employees' Liability Act." Nothing in the record so indicates, and certainly not the language from the release quoted in the findings. That language is all inclusive, covering 'all claims and liabilities of every kind or nature," more than broad enough to cover the claim before this Board.

 How the majority can read the quoted language as restrictively as it does defies not only the plain meaning of the words used, but a solid line of awards by distinguished railroad industry arbitrators as well. On this property, alone, for example, in Third Division Award 27496 (Referee Gil Vernon), identical language in a release signed by the claimant, there was properly held to render the claim moot: "Further, while Claimant submitted this matterto the Board in June, 1985, he executed a release "from all claims and liabilities of every kind and nature" in March, 1987. His subsequent action renders the present claim moot leaving this Board with no issue to decide. (Third Division Awards 27043, 26694, Second Division Award 9875)."

 Similarly, in Award 1 of the IBEW-BN Arbitration Committee established pursuant to Article I, Section II of the January 26, 1981 Merger Protective Agreement, a release constituting "full settlement and release of any and all claims of any kind which I have or might have against Burlington Northern Railroad Company" was given its plain meaning effect by Referee John LaRocco as follows:

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 Lj,-~3i-

      " The threshold issues before this Committee are whether or not the November 30, 1982 document can be properly introduced into the record, and, if so, does the document dispose of this claim.

      In exchange for a substantial lump sum payment, Claimant voluntarily released the Carrier from any claims that Claimant had or might have had againstthe Carrier. The language in the November 30, 1982 document is so broad that Claimant released the Carrier from all liability arising out of any pending claims. Claimant voluntarily struck a bargain with the Carrierwhich effectively released the Carrier from any liability. Claimant's action renders this claim moot. Even if we were to sustain the Organization's position on the merits, Claimantwould not be entitled to any monetary recovery.'


These awards follow the reasoning presented in a long line of decisions. See Award 20 of Public Law Board 719, UTU v BN (Daughtery); Award 42 of Public Law Board 1033, UTU v BN (Friedman); Award 12 of PUBLIC LAW BOARD 2071, UTU V. BN (Edgett); as well as Award 68 of Special Board of Adjustment pursuantto Memorandum of Agreement of June 21, 1968, UTU v. BN, and a host of other Third Division Awards including 22132, 21188, 21613, 22645, 21011, 20937, and 21633.

 In view of the foregoing, there can be no doubt that the instant award stands virtually in isolation and cannot be considered of precedential value.

 Ivfaxine im erman, arrier em er

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