PUBLIC
LAW BOARD NO. 5850
Award No. 395 -
Case No. 385
(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 when Claimant K. J. Jimenez
(6581227) was issued a 20-day record suspension by letter dated
March 11, 2010 for violation
of
MOWOR 1.1.2 Alert and Attentive for
causing damage to a machine on November 19, 2009.
2. As a consequence
of
the violation referred to in part 1 the Carrier
shall stricken the discipline from the Claimant's record and any
reference there
of,
and that he be made whole for his lost wages and
unnecessary expenses as a result of attending this investigation on
February 11, 2010.
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 is a Machine Operator who was operating the regulator. While securing
the wing of the regulator, it broke the window of the cab and bent the frame.
Claimant was advised an Investigation was being convened:
"...for the purpose of ascertaining the facts and determining your
responsibility, if any, in connection with your alleged damage to the
regulator window when the left wing was incorrectly locked in place
allowing the wing tip to strike the window frame on November 19, 2009
while working near the Pico Rivera Yard on the Los Angeles Subdivision."
PLB NO. 5850
Page 2 Award No. 38C'
Case No. 385
There is no question as to what occurred, but the Investigation was intended to
find whether the Claimant was responsible.
The incident occurred at night. Claimant stated he apparently failed to raise the
template that would protect the window.
However, there was considerable discussion concerning the lack of a light, or
whether enough light was on the left side. There is also testimony concerning a design
flaw as this was not the first time a regulator window was broken. Fortunately, the
windows in the regulator are tempered in that they crack but do not shatter when
something like this occurs.
At the Investigation, the employee who handles the replacement of the glass on
Sim`-1;-
~F
testified he has replaced other regulator windows, but none where it
was
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also replace the frame which, in this incident, was bent out of shape.
a,a..w,
developed that night operations were not new to the Claimant as he
had
ov.
._ . N
regulator at night previously.
Claimant was assessed a 20-day record suspension and a one-year probationary
period. No lost time.
This Board finds that, regardless of the theorized design flaw and lack of light on
the left side of the regulator, Claimant's experience in night operations and admission
that he must not have raised the template far enough to protect the window, that the
Claimant was in violation of Rule 1.1.2.
The claim will be denied.
AWARD
Claim denied.
ORDER
Page 3
PLB NO. 5850
Award No. 3195
Case No. 385
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
obert
Aicki,
. Chairman 8 Neutral Member
David D. Tanner, For the Employees
Dated: ,/rS~/// /
Samantha Rogers, For the rrier
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