PUBLIC LAW BOARD NO. 5860
Award No.
Case No. 330
{Brotherhood
of
Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Burlington Northern Santa Fe Railroad (Former
(ATSF Railway Company)
STATEMENT. OF CLAIM:
1. The Carrier violated the Agreement commencing December 21, 2007
when Claimant, F.R. Valdez Jr. (1298139) was assessed a Level S 30
Day Record Suspension for allegedly violating Maintenance of Way
Operating Rule 6.3.1 and Engineering Instructions Rule G.3.1 for the
alleged failure
of
a backhoe machine occupying the main track at MP
173,2 without proper authority on November 13, 2007 on the Gallup
Subdivision, and;
2. As a consequence of the violation referred to In part 1 the Carrier
should reinstate the Claimant with all seniority, vacation, rights
unimpaired and pay for ail wage loss commencing December 21,
2007, and remove any mention of discipline from (heir records.
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.
The Carrier advised Claimant that an Investigation was being convened:
"...to develop the facts and place responsibility, if any, in connection with
possible violation of Rule 6.3.1 of the Maintenance of Way Operating Rules,
in effect October 31, 2004, as supplemented or amended, and Rule G.3.1 of
the BNSF Engineering Instructions, In effect August 1, 2006, as
supplemented or amended concerning backhos machine ailegedty,
occupying main track at MP 173.2, without proper authority at
approximately 1115 AM MST, on November 13, 2007 while employed as a
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Case No. 330
foreman at Lupton, NM on the Gallup Subdivision. "
After a mutually agreed postponement, the investigation was held on December 4,
2007, following which Claimant was found responsible and was assessed a Level S 30day record suspension and a probationary period of three years.
There exists no cordroversy concerning the charges leveled. Claimant and crew
had two assignments. They completed one, moved to the location of the second but It
was close to lunchtime, Claimant discussed the work and asked the crew if they wanted
to eat first then complete the assignment or do the work and then eat. The election was
to do the work and then eat after.
Claimant went to his truck to get authority from the Dispatcher to foul track with
the backhoe. While on hold with the Dispatcher, he saw the backhoe bounce across
Track 1 to foul Track 1. Claimant got off the radio and went back to his crew and began
to work on Track 2.
In the Investigation, the Backhoe Operator freely admitted he had no authority to
foul Track 1. Two Supervisors were performing operations tests and witnessed the
backhos fouling Track 1 and they knew the crew had no authority to do so.
The operations team approached the Foreman and advised him to square away
man and equipment, but he did not. Clalmant's response was H they were taking him out
of service, he had no authority. The Supervisors tied up Claimant and crew and called
out a second crew to finish the work.
It is true that the Foreman cannot set on the shoulders of each of the members of
his crew, but he has the obligation to take corrective action such as reminding the
Backhoe Operator that he simply cannot take matters Into his own hands. He must
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Case No. 330
abide by the Rules, and if the Operator objected, Claimant could have sent the Operator
packing and called for a second Operator.
When Claimant did nothing to the Operator, and in fact commenced working on
Track
x
as
if the Operator's actions were sanctioned and nothing was wrong, the crew
was placed in jeopardy. Claimant was clearly in the wrong.
The discipline assessed Claimant did not cause him to lose any time and Is
similar to a record mark which is intended to remind Claimant to abide by the Rules.
AWARD
Cfairn denied.
ORDER
This Board, after consideration of the dispute Identified above, hereby orders that
an award favorable to the Claimanttaj not be made.
Robert t.. Hicks, Chairman 8 Neutral Member
David D. Tanner,
For
the Employees Samantha Rogers, Forthe C ,rter
Dated:
11//406