PUBLIC LAW BOARD NO. 5850
Award No.
Case No. 277
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Burlington Northern Santa Fe Railroad (Former
(ATSF Railway Company)
§JATEMENT OF CLAIM:
1. The Carrier violated the Agreement on April 11, 2005, when k Issued
the Claimant, Mr. M. W. Artts, a 10-day record suspension for violation
of Maintenance of Way Operating Rule 1.1.1, 1.1.2; and Engineering
Instructions 2.4.58 Table 2-1 and 4.3.4, for failing to take the safe
course, failure to be alert and attentive, failure to consider cross level
during Inspection, and failure to property check restrictions at MP 5.5
on the Mykawa Sub-Division resulting In a derailment on February 3,
2005.
2. As a consequence of the violation referred to in part (1), the Carrier
shall immediately remove any mention of this Incident from his
personal record, and make him whole for any wages lost account of
this incident
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 jurisdiction of the
Parties and of the subject matter, and the Parties to this dispute were given due notice of
the hearing thereon.
Claimant works as a Track Supervisor and is responsible to Inspect tracks
assigned to him at least once every 30 days. A deralknent occurred on February 13,
2005 (not February 3 as stated In Item 1 of the Statement of Claim), resulting In over
$200,000 of damages. An immediate inspection to determine the cause resulted in the
finding that a cross-level variation of 3 114 inches existed and was the cause,
Page 2
PLQ
/116
Sao
Award No.
Case No. 277
Since this territory was assigned to Claimant, they cited him for allegedly violating
various Rules, and after the Investigation they assessed a 10-day record suspension.
The following facts were established at the Investigation that:
1 - The territory here concerned, particularly where the derailment occurred was
considered as a soft spot.
2 - Claimant knew this and inspected this section on February 4 and again on
February 10, and in each instance the cross-level was the same, 2 TMB inches.
3 - Heavy rails occurred subsequent to February 10, but prior to the derailment on
February 13.
4 - The Carrier readily admitted that the heavy rain could have caused the crosslevel to change ttom 2 7M8 to 3114.
5 - Although the track was 10 MPH, heavy loads wen: in the trains that used this
track.
No one questioned Claiment's supervisor's findings of the cross-level
measurement of 3 114 Inches and since a 3 inch cross-over calls for the Carrier to take
the track out of service, It was the cause of the derailment
To this Board, the circumstances of Claimants negligence have not been
established. No one has questioned his findings of the 2 7118 croasaevel variance on
February 10, thus they cannot say he was negligent when a heavy rain could have
caused the variance to go from 2 7118 to 3 114 Inches.
AWARD
Claire sustained.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimants) be made. The Carrier is ordered to make the
award efcttve on or before 30 days following the date the award is adopted.
L4&1 gg4h
Robert L.
icks,
Chairman 8 Neutral Member
Rick B. Wehrh, Labor Member William L. Yeck-,-Dahrier4lember
Dated: