(Brotherhood of Maintenance of Way Employee PARTIES TO DISPUTE: (The Burlington Northern Santa Fe Ralfroad (Former (ATSF Railway Company)

 STATEMENT OF CLAIM :






FINDINGS
 Upon the whole record and a1 the evidence, the Board Ands that the parties herein an carrier and employee within the meaning of the Railway Labor Act, as amended. Further, the Board is duly constituted try Agnen»nt, has jurisdiction of the Parties and of the subject matter, and the Parties to this dispute were given due notice of the hearing thereon.
 On August 29, 2001, the Carrier advised Claimant and employee Hannah jointly that It was convening an Investigation m:


Page 2 pL(3 (~ . 5a~ Award No. 212

    hours at Richmond, CA, West end Richmond yard track 9123, 9124; so as to place responsibility, if any, Involving possible violation of Rules 1.1 (Safety); 1.1.1 (Maintaining a So% Course); 1.1.2 (Alert and Astenbve); 1.13 (Reporting and Complying with Instructions); 1.20 (Avert to Train Movement); 6.3 (Occupying or Fouing Track); 6,3.2 (Profctlon on Other Than Main Track) of the Maintenance of Way Operating Rulas In effect January 31, 1999, including revisions up to Aprli 2, 2000; Rule 5-17.2.4 (Fouling Track) of tM Maintenance of Way Safety Rules in ~ January 31, 1999, Including revisions up to October 10, 1999; arid 1.1.1 (Fouling the Track): and 1.1.08 (Responsibilities of lndMdual Roadway Workers) of BNSF Engineering Instructions Field Manual revised March t. 2001."

Due to the injury of Claimant Boyd, the Investigation regarding Claimant was held separately on February 14, 2002.
 of all the Rules cited, the most important to this Investigation are Rules 1.1.1 and 1.1.68. Rule 1.1.1 reads in pertinent part:

..Each roadway worker is responsible for determining that on-track safety Is provided before fouling any track or assuming a position from which he or she could potentially foul a tack while performing his or her due" ...." And Rule 1.1.68 roads, In part:


    "Determine that on track safety Is being provided before fouling a track."

Claimant vas operating a ballast regulator working in a yard on Tracks 22 and 23. Leading to Tracks 22 and 23 it the switch leading to Track 111. To get to Track 19 through 24, the switch to 19 has to be opened, then open the switch to Track 23 and Track 24 switch Is off Track 23 lead.
 Claimant's machine was struck by two autoveyor cars coupled togelfrer and M was thrown off his machine and injured.
 The switch loading to Track 23 was not locked, nor spiked, nor tagged as Is required by the Rubs. Had it been, the Incident would not have occurred. Claimant's Foreman was Mr. Leroy Hannah and he was responsible for securing prpinaon for Claimant's operation.
 Page 3 PLB No. S-SL57D Award No. 2/2
 Case No. 212

Claimant did not personally check to see N the switch was tagged, spiked and locker! as It should have been, but he did ask his Foreman, on more than one occasion, ff

he was protected and the response was affirmative.

Because Claimant did not personally check to see If he was indeed protected as assured by his Foreman, he has been suspended for six months end disqualified as a Machine Operator for two years.


This is a catch 22 situation. If every Machine Operator andor crow member could not rely on the word of his Foramen or any one also, but was required to see for himself H he was property protected when fouling a track, obviously production would be greatly hampered, yet that b the way the Rule reads,and those Rules were violated by Claimant

Claimant hired out November, 1989. Including this Incident, he has had four occasions to partake in the disciplinary process. Two unrelated Incidents In 1997, but ono related Incident in April, 2001.

Progressive discipline is intended to Impress someone with the need to work by the Rules, but to assess a five day deferred suspension, arid then for a second similar Incident assess a six months suspension and a two year suspension of his Machine Operators rights lie unduly harsh.

Claimant's machine operating rights an restored with this Award. The six month suspension i1 reduced to 80 days actual. He is to be paid for all tirtr lost In excess of 80 days as provided for in the Agreement


                        AWARD


    Claim sustained as provided in the Findings.


                        ORDER · .


    This Board, after consideration of the dispute Identified above, hereby orders that

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                                          Award No. 2l Z

Case No. 212 an award favorable to the Claimants) be made. TM Carrier Is ordered to make the award effective on or before 30 days following the date the award is adopted.
Robert L Hicks, Chairman d, Neutral Member
Rick $. ehril, Labor Member
Oated:,Drcv.,v-lor N 110t
Thomas 1A. RohVnq, Carrier Me "'Or