PUBLIC LAW BOARD NO. 5830
Award No.
Case No. 233
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Burlington Northern Santa Fe Railroad (Former
(ATSF Railway Company)
STATEMENT OF CLAIM
:
1. The Canier allegedly violated the Agreement when investigation was
held on October 22, 2002, and Mr. Gerardo N. Lopez was disqualified
from working Foreman positions for allegedly violating Maintenance
of Way Rule 1.13 in connection with improper placement of
temporary speed restrictions in accordance with the Engineering
Instructions, Table 4-1, Temporary Speed Restrictions for Track
Work.
2. As a consequence of the Carrier's violation referred to above Mr.
Lopez shall be reinstated with senlof, vacation, all rights
unimpaired and pay for all wages lost commencing October 14,
2002.
3. That any mention of the charges relating to this incident shall be
removed from Mr. Lopez' personal record.
FINDINGS
Upon the whole record and all the evidence, the Board finds that the parties
herein are carrier and employee within the meaning of the Railway Labor Act, as
amended. Further, the Board is duly constituted by Agreement, has jurlsdlction of the
Parties and of the subject matter, and the Parties to this dispute were given due notice of
the hearing thereon.
The Carrier on an unspecified date disqualified Claimant as a Foreman ram
rodding a production gang.
,P(-B
ND.
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Page 2 Award No.
Case No. 233
The disqualification was preceded by Claimant's alleged ignorance of
Roadmastees instruction in connection with his failure to check the track condition and
rail temperature after the undercutter had completed its work. To protect man and
machinery, Claimant then placed a 10 MPH speed restriction on the rail just undercut
From Claimant's testimony as recorded in the Investigation transcript that this
assignment and the responsibilities required when coupled with the warning of being an
"outsider" overwhelmed Claimant
Prior to the assignment, Claimant stated he had worked as a Foreman for five
years, but his record reflects that during this five year period, Claimant was not without
Incident as Claimant was cited for and found culpable for the charges. One incident
occurred in 2001, and two within a four month span In 2002.
k is understood there exists different type Foreman positions ranging from
production gangs to section crews permanently headquartered. The production crews
are undoubtedly more stressful than the local small gangs.
It is this Board's decision that his Foreman rights be reinstated with the caveat
that he cannot displace or bid on production gangs for a period of one year from the data
his seniority is restored. After the one year, the Carrier can then determine if his
performance as a Foreman during this year has improved sufficiently to litt the restriction
on production gangs.
There
a
no pay for any money Claimant may have lost because of the
disqualification. The Carrier did have concerns and provided sufficient evidence to
support the disqualification up to the date of this Award.
PL,6
NO.
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Page 3 Award No.
Case No. 233
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Clalmant(s) be made. The Carrier is ordered to make the
award effective on or before 30 days following the date the award Is adopted.
Robert L. Hicks, Chairman & Neutral Member
Rick B. Wehrli, Labor Member TfiomASMr-Rohl
lag:, Cattle Member
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