BEFORE PIJBLZC LAW BOARD NO. 5$39. 8. IV, . W.
r .
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
UNION PACIFIC RAILROAD COMPANY
(Former Oklahoma-Kansas-Texas Railroad)
Case No. 11
SEMEN OF CLA1M:
1. The Level 1 discipline assessed D. D. George, SSN 42968-46$1,
for
his alleged violation of Rule 42.6 in connection with a
collision between a company vehicle and a private vehicle on August 29,
1994, was unwarranted, without just and sufficient cause, on the basis of
unproven charges and in violation of the Agreement.
2.. As a consequence of the violation referred to in Part (11
above, the Letter of Reprimand assessed shall be removed from the
claimant's personal record.
Can August 10, 1994, the Claimant was involved in a collision NOth a private
vehicle while operating the Carrier's tamper through a road crossing. - A formal
investigation was held and it was determined that the Claimant was guilty of violating
Carrier Rule 42.6. Subsequently, the Claimant was issued Level 1 discipline which is a
letter of reprimand.
The Organization took exception to the discipline assessed the Claimant and fled. __
the instant claim on his behalf contending that according to the testimony of witnesses to
the accident, as well as the police report, the Claimant did not strike the private vehicle
but rather the private vehicle struck the Claimant's tamper.
The
Organization contends -
539-i~
that the discipline assessed to the Claimant is unwarranted since the accident was clearly
not the Claimant's fault. -
The parties being unable to resolve the issue, this matter comes before this Board.
This Board has reviewed the evidence and testimony in this case and we find that
the Carrier has not met its burden of proof that the Claimant was in violation of a rule
justifying his discipline. Therefore, the claim must be sustained. -
The Claimant was charged with violation of Rule 42.6. That rules states:
Track cars and on-track equipment must approach all grade crossings
prepared to stop, and must yield the right of way to vehicular traffic.
If necessanr_ flag the crossing to protect movement of a track car or
on-track equipment.
The
record
uz
this case reveals that the Claimant was working as a machine
operator operating a Carrier tamper through a road crossing when it was struck by a
private vehicle on August 29, 1994. A thorough .review of the testimony and other
evidence in the file indicates that the operator of the private vehicle never touched her
brake, and inay have pulled around another vehicle, a Ford pick-up truck; that was
stopped at the intersection prior to the time that she entered ibe grade crossing. There
were no skid marks which would have indicated that the driver of the private vehicle had
attempted to use her brake. The lights were plashing and the Claimant was utilizing his
hom and other safety equipment. The tamper had already stopped at the time of the
impact. Given those facts, this Board must find that the Claimant approached the grade
crossing prepared to stop and yielded the right-of-way to the vehicular traffic. The
vehicular traffic
in
this case paid absolutely no attention to the flashing lights, the hom,
and even the fact that there was another vehicle stopped in front of her. With those above
facts in the record, we find that the Claimant can hardly be -found to have violated Rule
42.6.
It is fundamental that just because that an accident occurs does not necessarily
mean that a rule violation happened and that an employee must be disciplined for it
Sometimes accidents occur and there is no proven fault on the part of the Claimant. That
is the case, here. This Claimant and the Carrier equipment were the victims of an
irresponsible and a reckless driver. It was as unfortunate occurrence but there was no just
cause to issue a Letter of Reprimand to this Claimant.
For all of the above reasons, the claim must be sustained.
Any
a
un
Claim sustained. The Letter of Reprimand issued to ikie Claimant shall be
removed from his record.
0-a' ~Q~
Carrier Member
U
PETER R:'1C~XERS -
Neutral Member
Organization Member
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