PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO )
 DISPUTE ) BURLINGTON NORTHERN RAILROAD COMPANY

 STATEMENT OF CLAIM










against them and they shall be compensated for all wage loss
 suffered.
 OPINION OF BOARD

At the relevant time, Claimants Piurkowski and Elliott held positions as Track Foreman and Group 3 Machine Operator, respectively. As a result of charges dated

November 26, 1986, investigation held on December 8, 1986 and by letters dated
 December 22, 1986, Claimant Piurkowski received a 30 day suspension and Claimant

Elliott received a 15 day suspension resulting from the collision of a Lorain 6 Rail Grinder striking Ballast Regulator BNX-60102 on November 25, 1986.

On the day of the incident, Claimant Elliott was operating the ballast regulator in an easterly direction working in conjunction with the rail grinder. Claimant Piurkowski was

on board the ballast regulator with Claimant Elliott. After clearing the main line at Stoddard Siding (MP 286.6) for a freight train, the regulator continued with its work several minutes ahead of the rail grinder. In the process of returning to its work location, the rail grinder's crewman spotted what was thought by him to be a brush fire approximately one-quarter of





a mile to the east of the grinder which, in fact, was dust caused by the regulator. After it became known to tte rail grinder operator that what was thought to be a brush fire was in fact the regulator, the rail grinder was unable to slow down to avoid striking the regulator.
 S. J. Schuler, the Loram employee who was operating the rail grinder, explained (Tr. 34, 36):










Claimants unsuccessfully tried to outrun the rail grinder by placing the regulator in reverse. Claimants were uninjured as they jumped to safety but some damage (estimated by Roadmaster J. D. Haney at approximately $1600 (Tr. 4)) was sustained to the regulator. Haney's F-27 report summarized the incident consistent with the testimony of the rail grinder operator:
The collision occurred at MP 284.71. The record establishes (Tr. 9) that the rail grinder should have started grinding at MP 285.1 but went past that point when it struck the regulator. Further, at that time, the regulator's protected limits were from MP 287 to MP 292. However, the rail grinder was operating within its protected limits when it struck the regulator. Further, although the regulator was in radio contact with the rail grinder, no yellow flag protection was established between the regulator and the rail grinder.
' D. R. Piurkowski and R. D. Elliott
                                      Page 3


        However, according to Roadmaster Haney (Tr. 5):


                    Q. To your knowledge, had there been instructions given from the ballast regulator to the Rail Grinder that he was in the area and to look out for him?


                A. To my knowledge, there had been instructions, yes.


            According to Schuler, who was operating the rail grinder (Tr. 36):


                Q. In your radio transmission with Mr. Brown or whomever

                    you spoke with, was it understood that this ballast regulator

                    would be near the location where you would be stopping to

                    proceed grinding again?


                A. I was told it was ahead of us somewhere ahead of us, and to

                    keep an eye ouL


                Q. Yet you still assumed when you saw the dust and debris that

                    was a fire and couldn't be the %ballast regulator, is that

                    correct?


                A. Yes.


            Further, according to Assistant Foreman D. Brown (who was in the caboose of the


        rail grinder unit) after coming out of the siding (Tr. 11):


                    Q. Did you notify ballast regulator Operator R. D. Elliott that you were coming out?


                A. Yes, I did.


                Q. What was his reaction?


                    A. He told me that he was working ... at that time he was working east of the area that had already ground.


                        a~


                Q. Did he [Claimant Elliott] instruct you to look-out for him or

                    anything?


                A. Yes, he did.


            The record also establishes that Claimant Piurkowski did not read the current line


        up to other members of his crew. However, Claimant Piurkowski testified that he


        instructed the crew that there would be a train coming and what to watch out for.


            The Carrier's arguments for upholding the discipline given to Claimants are that the

                              PLB 4402, Award 22

      ' D. R. Piurkowski and R. D. Elliott

                              Page 4


regulator, which was under Claimants' control, was operating outside of protected limits; no flag protection was afforded and that Claimant Piurkowski committed additional rule violations by not reading the line up to all crew members. The Organization argues that flag protection was not necessary because the grinder and regulator were worldng in conjunction with each other-, the entire area had been flagged by the rail grinder; there was direct radio contact between the regulator and the rail grinder; and, in this circumstance, it was not "practicable" within the meaning of Rule 9B to have a flag between the grinder and the regulator. With respect to Claimant Piurkowsld's failure to read the line up, the Organization asserts that such a failure was a mere technical violation unrelated to the collision.
 Substantial evidence does not exist to support the imposition of discipline in this matter. The Carrier recognizes (Carrier Submission at 8) that the collision "may not have been totally the responsibility of Claimants actions and rule violations ...: ' The charges against Claimants are specific in terms of the alleged misconduct. The investigation was "for the purpose of ascertaining the facts and determining responsibility in connection with Lorain 6 Rail Grinder striking Ballast Regulator BNX-60102, November 25, 1986, 10:30 a.m., at Mile Post 284.71 ...: ' [Emphasis added]. The record reveals, without question, that the "responsibility" for the collision rested with the rail grinder operator and not with Claimants: The evidence demonstrates that the rail grinder operator, although being made fully aware that the regulator was ahead of him as a result of radio contact with the regulator, nevertheless mistook the regulator's dust for a brush fire and then proceeded past his designated starting point to put out that fire only to come upon the regulator performing its normal duties. While the record reveals that, in accord with the Carrier's position, the regulator may have been outside of its limits, there was no yellow flag protection (although there was radio contact) and that the line up was not read to the crew, in light of the clear and obvious error made by the operator of the rail grinder, there has been no nexus
                    . , PLB 4402, Award 22

                              D. R. Piurkowski and R. D. Elliott

                              Page 5


demonstrated between those asserted rule violations and the responsibility for the collision which was the purpose of the investigation. Stated differently, in light of the rail grinder operator's conduct, we are satisfied that even if Claimants followed the rules to the detail argued by the Carrier in this matter, because of the rail grinder operator's error, there nevertheless would have been a collision. Surely, Claimants are required to follow the Carrier's safety rules. But, under the unique facts of this case with the error committed by the operator of the rail grinder and, by the nature of its charges against Claimants, the Carrier is still obligated to demonstrate the "responsibility" of the Claimants for the collision. This record reveals that the "responsibility" for the collision belonged to the rail grinder operator and not with Claimants. The discipline cannot stand. AWARD
 Claim sustained. The suspensions shall be rescinded and Claimants shall be compensated for time lost.

                    Edwin H. Benn

                    Neutral Member


    E. . Kallinen P. . anson

    Carrier Member Organization Member


Denver, Colorado March 11, 1991