BNSF RAILWAY C''O,*v1PANY
(Former :ATSI- Rai kvav Ca. )
t`ase '~c~. ;39(> sward :~,'cv ~~f~ - Rep c5 and 13;tnnistcr
Carrier File No. 14-1()-0208
)rt~anization File No. ~0-l 3N I -I t)7l .C'I.9
Public l.aw Board N«. 5850. upon the whole record and all tile evidence. finds that the parties herein are Carrier and f-nnplovccs vithin the meaning of` the l~til~at Libor Act. as amended: that the Board has jurisdiction over tile dispute herein: and that the parties to the dispute were given due notice of the hearing and did participate therein.
The Claimants. Steve :'fit. ltcvcs and Chad fi;tnnister have been employed be tile Carrier. On August t !, ?0l(). the Carrier charged C'IainI attts to attend stn iniesti~uation .-f(,r the purpose ofasccrtaining the facts rind determining (their) re;;pansil-)ility. if~any. In ccinnccticn with (their) Alcged failure to establish proper protection hefore pcrf«rn tine ;,tc~rk (>n yard mrck, \4f ?I-#.?, Ilutchinsml. Kansas, at apprc>sirrimeh, lc>1(i hours oil Jul\.2 1- 2(t1 1 t), %,Jule assigned as Welder and Welder l fclper." fl}c notice indicated that the
rnkcsti;gatimi \kould determine possible violation of` Mairterfance (,it' WaN Operating ltulc 0.3.2 I'rctteuti{)n ~)rt Other Fhan Main Frack. Following the irr~cstigation. the Carrier f'Mrnd that Claimants had violated this Carrier rule is alleged, and assessed each of tlturn a Level I 3U-da. record strsprnsi«n With a three tear revie\s pent id,
llaintcrlancc ref` Wa\ Operating Rif le C>- t.?. I'r«tectiori ors Ot frcr than Nfairf 1 r;tck. proN ides, if) rclcvant part:
f o cstablislt protection eon a track other than a main track. controlled siding or, ariv track where l`Tc' is )if effect. use one car a combination «f-tlic follol,irt,L~:
When establishing protection, the employee in charge must ensure that equipment and employees do not occupy or foul the track until protection is established. The ctnploy-ce assigned the responsibility of' hard movements must be notified of the Nvork tea be done:-. To establish protection on a track (,ether than a main track. controlled siding or an%, track where ~` f(.' is in effect. use mw or a combination of the: follOvvin<=: ..
file facts c1f, this case are [rot iii dispute. Joseph Jay Dicicribach. ltoadtnaster at %Vellington, Kansas, te tified that at the investiatiuri that he. along with Welding
; StrpeMsor Kent Davis arid Roadtnaster \lark Cro1NC. were perfOrriiing, learn testing oil tfre l ri Junta Suhdi,ision an tile day ofthe incident. Ile explained that they carne: to the l lutehinson 1`4ird, where Claimants were workine, and they rrhscrved Mr. Bannister ~;cldirioii a Ii ro~. wl Nlr, fcvt~s standIing over hire.
,\,It-. l)ief'erihach stated that as the Carrier officers pulled ril). they noticed that the two employees did not have a derail err a red flan or anything else between there and a locomotive oil the satire track oil which they were workine,. Ile added that the,,, <ipproachcd the employees and asked them about it, as they had not established any protection as required by the applicable Carrier rule for protection can other than main track. Although a revised version of the rules was issued the day ofthe incident. ail(] the iic~ rule, ktaintc:nance of' Way Operating Rtile 6..3.'?. was entered into evidence at the investivation, there vas no evidence that the relevant port oil,, the rule had been changed from the previous v=ersion. nor that the employees were tin aware of- the rule's requirements art the time of the incident-
11r. Diefenbach testified that lie was nest aware if' there was any protection behind the locomotive to prevent any cars from shoving inter the locomotive, which was approximately 10(t feet away. l lower-er. he did acknowledge that there was no crew on the train.
Mr. l>iefenbach explained that the employees were working nn tile 109 tract: with n ii derails hemecn them and the train lylhieh ",-as also oil the track. lie acknowledr,,ed that tine of the protections listed in G.3.? eras to line. switches against movement, but the employees v~ere \vorkinrr oil a frog and there was no way to lint: that switch to prevent a train from conunrz over them. Further. lie stated, there was no switch oil the track where Clairutint teas %%0rkinrj between there and the train.
Mr. Diefenbach also stated that another form of protection involves placing a flarnan to hold all trains rind on-track equipment. and they asked Claimant and his CO_ Worker If' they vvere using, that form of' protection and they. replied they were not. Ile Aated that the employees asked if they could use a lookout in the yard. ;end he replied that their could not. buts lie asked them whether they had the form filled out and thek, acknowledged that they did not. Nlr. Diefcnbach also stated that there was no red flag displayed at the worksite and a flagman is required to have a reed flag. Nor. Dief'cnbach explained that lie asks,-d the employees if they had cane rind they said nee. that their protection was derails and switches had lined against them. lie stated that Claimants told tile Carrier officers they expected the train crew would conic and brief` uvith them before thcV rncrved the trail). 4
Willard l:)citis. Wcldin~) Supervisor. Kansas Division. testified that lie was part of' tile: testing Learn that discovered the matter at issue. lie stated that they asked the ertifrlcrecs cabal the\, vcxrc: trsin_4 fair protection. about the particular frog then ~verc %verrking oil. bccsitrse there here t~,o locomotix-es and a lot ofcars sitting in the track and
lie did not ice a dcr;ul. Mr. Davis added that \1r. liannistcr told the ('airier (rf'ficers that the train crew ~~rruld lt;rvc to come and tell them what was 'oinp ()it, and Mr. Dmis replied that that \'.,'IS not a fomn of protection. In particular, he stated, lie told tlrcrn that sonneone could shove ears in that track ~rnd the lracontotivcs %s,muld come rir~ltt over thern.
carrier Roadmastcr N9ark li. Crowe also testified at the Hrvcstiu.ati«n. Ile stated that when lie and the other mo C'arricr officers ohscr%-ed Claimants. Mr. Roes was ;tcting as =t look-aril Ndhile 'Mr. Bannister %vas welding, but that procedure was r-ccluircd oversight for the welding operation, not track protection. I IC stated that alihouIIh the tWcr crnployees did ha%e the lead locked and s%k,itched properly. there: was a locomotive sittitlf! (,it the track they were workim-, crrr and they did not have <my protection bct,~vccrt thentselvcs and the train. Ile confirmed that there was n« crew «n the train. Ile also tcstitied that the employees (lid nut have proper protection tin the adjacent track. Mr. Cro"e asserted that safety was the responsibility ofeveryone in the workgrc~up.
',1r. Rcvcs testified at the investigation that he and Mr. Bannister herd ~t lob brietinp bcft>rc begIinnIing their work an the day at issue. <rnd discussed that their protection wmrld be thro%vinp switches against mcvernenf crud the use of derails. lie ,~tatcd that \Jr. Bannister. the lead tvelder, teas the employee ire charge of'their operation.
Mr. Bannister also testified at the investigation. Ile confirmed that lie and \9r. Re\ es had a -jab briefing,: prior to beginning work. and discussed that he would work on the frail in the yard and Mr. Reves would function as a flagman. I fowever. Mr. Bannister acknowled<.ted, lie did not believe: 'vlr. Reves waves equipped with a red I'fag. IIe also admitted that they should have had a derail up in front of the train to protect against nlcovernent, but did trot put one up until the Carrier officers arrived at the scene and required them to do so. He added that althotl&Ih he was the employee in charge and required to snake sure theyy worked safely. safety was the responsibility ofall employees ins oli ed.
The (.'airier asserts that this case is not complicated: Oil July 16, 2010, Claimants \\ere %vefdin., a frog with no protection between where they ~kere working and a lc)cottlcrtixe sitting on the santo track. The Carrier states that Claimants violated the cipplicahle Carrier rule tkhich r-ecluires a derail, along xvith a red flag or light. between their location and the locontotivc's. As fi>r the Organization`, cmltention that Rule (a3.' G%as revised on [lire day c&tcr Claimants' violation, the Carrier notes that the portion of the rule recfuirinp the dmril ~rnd red flat.; remained unchanged frmn the rule`s previous t c I'S I C) 11.
Hie Carrier points mil that three mtrrcsscs testilic-d that thc~, ' tvcrc pCrf,0r-rtrirW cr _,afetv audit ~hcn the) came upon Claimants, \0rr uerv %ktrrkirt" ~ S~ithc)ut protcOion :rnd could have had a train eonte through on top of them. Indccd. (fie Carrier st;rtrw. .'\1r. Rc\cs admitted at the investigation that it %Nas his rcsp«n.wrhilitN as flaLman to lime <r red flag zrnd lie did rrl't Rave one. lie also, the C'<rrrier notes, aCl,t1cmicciged that fltrlc f}.i_ requires that Ile grit up a ClerAil. and that this, too. was his rcspcmsihility. C Irtimants ;rdrnissions. the Carrier urges, is SlrOICICnt to satiStV its burden of procrl`. and there can be tro doubt that C `f<rimants violated Carrier rtrleM.
With respect to the penalty assessed, the Carrier argues that it is not possible to ~-i erstate the seriousness of' this violation. File Carrier notes th4st its rules are in place to prr>tret its cniployees, and the: employees Must COMply in order tc~ protect therriscll=is and !heir co-workers. the tOrttrnate tact that there was no injury in this situation does trot relieve Claimants of' their responsibility. I-he Carrier C«11CILICICS that it ~~as correct in Jetermininra that Claimants` conduct warranted a Level S c Mkrtion. and [lie disciplirrc teas assessed in ~Iccordance with its 1'1:!'.1. mth consideratir>rt rtiretr to C'laimartts' personal records. I lie Carrier notes that Claimant the discipline in this e~rsc was aSSCSSed in accordance kith the 1'11'A. with consideration `.liven tc, C1urmtnts' personal records. Indeed. the Cmrricr ~.tates. it showed Mr. Ret-es leniency. a4 this was hip: .second Levcl S
iolation vothin nine mouths and Ile was subject tor dismissal, For all of these reasons, the Carrier urues that the claim he denied.
Hie Orianization raises procedural and suhstantiie challenges to the discipline assessed against Claimants. First. the Organization states, the rule Clannants were found ;2trilty of, violating was not in eflect at the time; of the relevant `vents. as it was irz1plerncntcd one day later. File Organization also notes that the investigation notice referred to Claimants by the wronL job titles. further cortftrsinct the matter.
On the merits. the Organization asserts that the issues in this matter are x0lether the switches that provided direct access to the track upon which Claimants were «.orkir!g were lined against movement. and whether Claimants ckcre protected by a \\atchman or lookout. The t)rganizatian states that the testime>ut of` the Carrier witnesses shows that the only tracks nut protected by derails or lined switches were 1f)8 and lC)r). which Mr. Reves was pre>tectirtiLas a welder helpcriwatchman under )'rack Wc;idinu Rules and 1'rocedur-CS Chapter 1 General Rules and Procedures page 1-IM ~ruc3 1-lr). Rule 1.7.3. \N filch provides, .--I lie grinder operator (\vclder helper) shall act as a watchman when men or equipment are fouling the track land/or the welder is %veldingerr grinding. The ~,rinder operator must he alert at all times and will he field responsible for the safety of men and equipment." This rule clearly required Mr. Rcves. Mho was m.)rking as watchman, to protect the wclding or grinding, but did trot require hire tar he a ilagman. f -lie Organization notes that tile discipline notice misidentified Mr. Retcs as a \~clder instctrd of' a xNclder helper. and in fact Mr. Bannister was the: Io:rd kkci<fer anal therefore the er71ployec-111-charge.
Supers isor as ;t Roadtnaster because the Carricr had not placed an c\cnipt cnip)oscc III tills position. Ilte Agreement. tile Organization states. does trot allows fir this pass-thilitN :utd showy; the Carrier's Inability to staff engineering positions :rf c\cn lcccl. irtchrdirr') inanaucment. I-he (>roanization notes Claimants' testitnota" that -I rack Strperw isor Ntrthan Anderson, wtho sent them to this ww-ork location on the &fv at issue, was rclicwita{.a ftrr the Roadfnaster.
In conclusion. the Or(,,aril/asserts that the Carrier weeks to chartte Clannants wwith violation of a rule that was not in effect at the time c}f their supposed infraction. \Ioreowcr. the ()r<ganization states, the Carrier seeks t<> redctine AISf .-yoreernent 1984. revised 2004. hvm forcini4 Track Supervisors it) replace vacant Roadmaster positions %whenewer the Carrier determines it needs a replacement Roadmaster fur no~ first line supers isor for those duties. This case also reveals ;a daring f';ttllt wwith the ('<rrricr's ()pcrations Fewting procedures. its it must he asked who is super\ ising the territories «f the absent Roadmasters %while they are oft their ten-itorics during sucI~ tcstirt- Iltc (trganization concludes that the Carrier has failed to produce cvidenee sufficient to support a finding of ally rule violation. anti the discipline assessed is c\trentc. unwwarranted and unjustified. The C)rt!anixation requests that the clain7s he strstaincd.
We have carefully rep iewwed the record in its entirety. First, we find no merit tor the C>rr~aniration~s procedural argument that the employees were prejudiced because tile Carrier cited a rule which wvas part of a revision that issued the clay after the incident. 1-he record reflects that the relevant ponions of the rule remained intact, and it was clear from the record that the employees here aware. at the time of the incident. ofthe specific requirements of the clircctive. at issue. Nor tic} ww,,,e find evidence of and other procedural irreLrularitv which dcpri~ed Claimants of their right to ~t fair and impartial in\ estigation. W'c also chose not to address the C)rganization's arguments concerning the C'arrier's management staffing, as it has not been shown to have any bearitv- ran the events at issue.
()n the merits, the record is unclear as to exactly wwhere the Claimants established protection and. other than the track upon wwhich they here \vorking. Mhcre protection was lacking. What is clear. however, is the rule's requirement that ct derail he placed hctt~ecrt the employees ww«r-king, on the track and a train occupying the same track, or that a flagmaa7. equipped with a red flag- protect the work scene. \y=hat is also clear is that Claimants were aware of these requirements, admitted that it was their responsihilitw to ensure a safe wwork environment, and admitted that then failed to talc: the nccessarw 4cps to do sir in this case. 1-17cr-ef0re_ their- L1ttilt has been prow en hw substantial cvidcrlce.
.-1s the C':trrier asserts. the situatiota here placed the cnaI)l«Vees in a potctttiallw darwerous situation. I heir assertion that thew would rely on ;t train crew to n«tifv theta I)cf(tre a train traveled over them seen is a cuwafier approach to the situation. dclclatinp their safety to the train crew, and i-noring the possibility that sonzcone might shove cars behind tile train. movim~ it forward toward then). Under these circumstances. there is ncrthin4~ to demonstrate that tile discipline assessed against Claimants ww<as unreasortahle or unww-arranted, especially in wicwv of the (_'arrier's Policw for l::ntplowcc Pcrf«rnaance lecountahiIitw- tI'f,:1'::N). .Ind Claimants' personal records.