BNSF RAILWAY COMPANY
(Former ATSF Railway)
Cage No. 407 -- Award No. 407 (Alanis)
C'arriex File '.`So. I 4-l 0-()03?
t)rpanization File No. I90-I3S2-IE)I.C'i.11
I. The Carrier violated the Agreement commencing fehrttary 2. 2010, \-hen Claimant. F.1. Alanis (fi5?51821 was, allegedlN, improperly disciplined by Disqualification as an Automatic, Spiker Operator.
2. ,-1s a consequence of the violation referred to in part I the Carrier shall remove firorrt the Claimant's record this disqualification and reinstate his seniority as an Automatic Spiker Operator and he be compensated for his lost time tmd expense and otherwise made whole.
Public haw Board No. >85Q, upon the whole record and all the evidence. (rods that the parties herein are. Carrier and Employees within the meaning of the Railway Labor act_ as amended: that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were Moiven due notice of the hearing and (lid participate; therein.
CI<tim:ant. I~..T. AIaois. hay been emplowed by the Carrier since 1979. E)n February 1. 2010, Carrier Assistant Rt7adrr~astc:r -I-heamas Ju1ik issued Claimant a letter stating that «n .Ianttarwr ?7. 2010 he had been observed operating Automatic piker X44003)63 at a rate oi- ?=I3 seconds per 10 ties, which (lid not cxtcet the: nominal rate of" 1.1i seconds per I Et ties. The letter continued that Claimant`a observed production rate %.vas not it) accordance tuith the manutacaurer"s car Engineering Instructions- perf~orrnance rates for
the machine, and l1(: would he tuned again in the near future. On Februarv 2, 2'010. Mr. Julik issued t:laintant another letter. stating that Claimant had been observed on that date operating the same machine at a rate of -2.5 ties per minute, which did not meet the nominal rate of 4.5 ties per minute. Itlie letter continued that (v'laimant's observed prodUction rate was not in accordance with the manufacturer's car F'rtginecring Instructions' pcrl6n n-tance rates for the: machine, and therefore Claimant was immediately disqualified froth the Automatic :piker.
t in February 8, 201(), the Carrier notified Claimant to attend an investigation in connection with his alleged unjust treatment by the Carrier's disqualification. Following the investigation. on March 1 2, 2010, the Carrier issued Claimant a letter stating that it had been determined that he had been justly disqualified, based on his inability to produce at the nonninal production rate for the Automatic Spiker X4400363 as set by the manufacturer tend Fugincering Instructions 23.7.1, Performance Rates far Machinery .Assigned to Tic and Fail Gangs and Bottleneck Management.
Carrier Fnginccring Instructions, 2 3.7.1. I'erfonnance Rates for N4achincry Assigned to~ lie and hail < ian(,s and Bottleneck Management, provides, in rcle~ 'out part:
Jimmy Capps. Carrier Assistant Director of Maintenance Production for the California Division, testified at the investigation that he oversees all production gangs in California. Ile stated that on car about February 1, 2010, the (.fang Roadmaster informed him that he had run cycle times on Claimant, he did not meet expectations far the: machine on which he .vas working, and the Roadmaster planned tee give Claimant a letter. 11r. Capps further testified that at this point Claimant had been can the machine 20 or 21 days. and Assistant Foreman Frankie 7`so had told him seVeral times that something needed to be done about Claimant because he was not doin, what lie should for cycle tines per minute and his spiker was getting behind. .
:\9r. Capps stated that he personally observe(] Claimant a few times. and Claimant had trouble spiking the ties to the {f'/ ties per minute standard. Ile stated that Claimant was bending the spikes, had to get out ufthe machine several times tea pull spikes with the claw bar and then had to back up and re-spike. Mr. Capps explained that lie regularly observes the spikcr operators' performance. and Claimant's performance was very poor in comparison to that of the other employees.
Mr. Capps explained that Claimant was operating the# :Anchor Spiker, the last tn<rclune in the consist. Ile stated that Claimant did not have a helper loading spikes in the: chute fir hint, so lie (lid that can his own. N9r. Capps explained that only the 441 and liP3_t3 58 50, Case No. 407
-,pikel-5 had spike feeders, because the #=1 does all the file spikes and ? ~ tries to <_let as niany of the anchor spikes 41s fie call. fie stated that tile operator can put (>0 Or 7() spikes in tile chute and do c>0 or 70 ties hefiire fie has to re-load the machilie.
Mr. Capps added that if' there: was a problenn with heat spikes. Claimant would have to get off the machin c and pull them himself. VIr. ("apps stated that Carrier policy is that ]fail operator [)ends a spike it is his responsibility to pull it taut and spike it etgain,
l'hOnias .flIlik. (°;brier Assistant lto<Idniaster with Tie <iang I'll-0-2. explained at the imesti~_,ation that lie looks out f«r places where there are large gaps between machines performing work, which is ei quick visual way to identify machines operatinj, at a slower production rate than the machines ahead of there. f le stated that during the time Claimant was operating tile Spiker. lie little(] Ills production during ,everal ditiercrit cycle times. fie explained that I-able 2i-1, the performance rate from c'arrier's Fnvincering InstrtICti0tiS, sets t0111'I specifically the nominal - ell- bare ainimurz - and tile optimal production rates for the particular machine.
Mr. Jullk stated that fie informed Claimant that fie tkas require(] that lie Incet tic nominal production rates so that lie could keep tip with the fang zind not burden his CO_ workers with havini-: to do more than their share. ! (e pointed out that tic; table provided Xd4. Nordco. Automatic !;piker, C'X, at Optimum Production Rate ties!Irlinute 7. nominal production rate tiesirninute 4.5, optimum per 1 0 ties second S'(,. nominal per 10 ties second. fill- t%t1) operators!onc feeder, tend Claimant \1citlld tall into this tW0-Operator category.
,\,,lr. Julik further testilied that lie discussed with Claimant tile reasons for ficrf~tntiing cycle tunes with him, and Claimant responded that Mr. .Jtxlik was iOcusin
too much on tic Lumbers and that \vas not what really counted with respect to production. fie explained that Claimant told him that. with his focus on numbers, Mr. JIIlik did not care about the quality of the work. 1,Ir. Julik informed Claimant that the other Spiker (tperators mere able to achieve a much Higher production level while Iiieli1itar'lin4g high le\-Cl quality. l le ,late(] that Claimant had mentioned that there: were a fcW IIICChalllCal Issues 1%'fh 1115 Machine. belt they had all been corrected by the !41St tllile fie cycle tittle(] 111111.
Mr. Julik further explained that at the relevant tinics Claimant did not have it feeder with him. bill v3ith-fcedcr cycle times ensure that the time it takes to reload tile spikes is not counted. Mr. Julik further explained that although tile Fngineerirli-I Instruction rates are for cane or t\,,-o operators/one feeder. the machine is designed so that the chute can hold a substantial amount of strikes. Ile state=d that only ~~hen the chute is exhausted would ;i feeder have any effect on tile production. Therefore. fie added, provided Clainiant (lid not I-Lin out of spikes during they period of cycle-tinting, tie fact that fie held no f'Cede r would not affect his achieved production rate. l le stetted that vlien fie tililed ('1<iniant lie ensured that he had it hill rack of spikes sty that his production rate m>uld not be hindered. I fe stated that every dime Claimant eras cI,cle-tinted he made sure Claimant did not have to ;ictuall\- stop and perform feeder ~~«rk.
Mr. Jtllik stated that cite January ?7 lie took an ~twerayge i& :;cECral tittle periods during, which Clainiant uas operating, the machine. lie csplaincd that oil February I lie -ave C'laicttattt the letter specific:allv describing tile standard rates mid C'laimant's performance. rind tile ne,\t time lie timed Claimant Ere tmide sure C1timant was mare Ire \wtts S-oimg to do ;<>, altll«th-1li lie did not tell hint esactlv %whcn lie wmtld ;tart tile c\clc times.
Mr. Julik further testified that Claimant had three wweeks oil the machine. 21 calendar ditys. and during that time lie did not see mew marked improvement if) his productiOn rate;. lie ;tdded that after the second timing. lie presented him with a disqualification letter. Ile stated that chtring his observation of'Claimant lie noted that lie seethed to have a dif'licult tithe aligning the spikes with tile spike hole, and would often try to grab the wpike and lilt the plate and have to start over. Mr. .fulik stated that lie had ::several cliscttssiarts With ('laim:uit concerning expectations fir his performance. lie testified that Claimant did not make any request f6r a feeder. car a diffcrem machine. or anything to help hint become proficient. Rather. lie stated, Claimant simply asked fur additional time.
Mr. Julik added that lie did neat take an isolated look rte C'laimant's work performance. hilt rather observed Mini spiking 45 tics. wwliich took hits 43 minutes. far helotw the norrinctl rate. I le stated that Claimant's performance \k:ts v ell below that of the other spikers. and his lack of'performance caused the other operators to have to fill HI the extra that CIt1117iant should have been pcrfi}rtinnv. I fe added that of Ills cn~,ltt spikers four have ,a feeder and f(>ttr dot not, but the production rates for the ;pikcrs wwho do not have feeders f1tr exceed Claimant's. :,1r. Julik ackn<»vlecl,,ed that Claimant lead beets pulled ofthe machine tit act as a Iceder bttt stated that lie spent Iar more tittle operating the spiker than feeding, tier anyone else. lie did state that ('lannant had informed tile mechanics that there was a problem ~witli the nipper yin his tttttchine. but the spikes he was drivingg were already spiked to the rail w1ten lie arrived at the tics. and nipped up tight, so the nipper wwould not have much of* rtn impact. Ile also stated that the spikers who wwere operating ahead of Claimant were not ttSitt12Y their nippers and wwere able: to function well ,end pcrtorm at a much higher rate.
Mr. Julik acknowledged that lie gave Claimant the first letter concerning his perforniaiicc on fFcbruary I arid the second one oil February 2. llowever_ lie state°d. the Assistant Foreman told him lie gave Claimant the cycle-tintc information on the Wednesday ()it which Ire was first timed. and ('lttittlztttt ww;ts not disqualified until tile f0llc_rWing rucada-1.
Michael l'tttt. Carrier Manager oi' Special Projects. testified at tile itivfestii'atit>tt that i2 is his responsibility to audit Production tiangs_ anti h< observed Mr. Julik perft}rnum- evcle times oil Claimant, and Glairtiant's performance was less than desirable. lie explained that not all spikcrs have at f'ecder with theist, bccc else of manpower allocation oil the ~~rtri. Ile :tdclecl that the lack (tf'a feeder would not cause ,in operator to
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C'lairnartt Iris ties and the expectations. fie stated that the next dal. bct%t-ccn I I ;r.m, ,Ind I p.m.. lie heard \Mr. I'so oft the radio asking Mr. Jtrlik if fie had typed up the paherwvork, and Mr. Julik replied that he vas working on it. Mr. Julik testified that lie did riot recall that any :such conversation took place. At the crtd of that day's shift. t'Ixtittrant ,,tated. fie received the disqualification notice.
Claimant stated that he had requested a feeder. and the gang members all `,got totyyether and asked for feeders. Claimant did not identilv whether lie had made that request to all%" Carrier officers. Claimant also stated that the fact that the nipper was riot working on his machine added to his hrroduction problems, because it caused the tie to Move ;rnd bounce when lie drove it. IIe added that when he first f-of on the machine there was a problem with the guns. the mechanisms that actually drive the spikes. as the wpikc lw«uld riot kick properly and lie had to put the 21un dawn and shake it. I le also stated that lie was neat can the machine the entire 'I days he was assigned tot it. as fie ivas pulled c>II~ arid only operated the machine about eight toll) daNs.
hhe Or<-anization asserts that the disqualification of Claimant. a 61 ,,car old employee with 1 w years of total service and 25 years as a Machine Operator. c:111not be justified. Fhe Organization points out that Claimant as assigned to the machine at Ii
()it .January 1I .:010 .and althout-,h there are usually two operators and a feeder ()It each "hiker NIachinc. Clain-rant was required to operate the machine alone. Illereli,rc, the Orcanization states. lie had to both operate and feed his oven :;piker, compoundinto his duties.
Moreover. the Organization points out. Claimant was only allowed to operate the `piker eight to 10 actual work days of the ?1 calendar days lie kkas assigned to the position. I-lie Organization notes that Claimant was audited and observed on .January 26,
'010. and tit the close of the shill' on February I he was isScred rr letter stating that he needed to improve. The Organization states that the verb next day. between I I a.m. and I p.m.. lie vas disqualified. Certainly. the Organization urges. tour hours" work time is riot enough to determine whether an employee can improve his pcrlormance enough to maintain his position. In particular. the OrLianization points ottt. the Carriers Nianager c;f' Special Projects admitted at the investigation that it takes of anniniturn of 10 days t« become qualified to operate a piece of equipnnent. Claimant. the Organization stresses, had only 21 days at best. and did not operate the machine on all ol'tllose days.
Further. the Organization contends. the record demonstrates that Claimant's machine experienced mechanical problems. The Ort-,anization states that the nippers, the clamps winch gray the tie, pull it tight apinst the rail and keep it trorn turning <>r movitt". k%cre not working. Moving and rolling. the Organization explains- is the reason spikes become bent and will riot drive properly or quickly enough. I lie t)raanization notes that (,,tie of the major complaints against Claimant X\as that lie had issues l,kith hcrtt spike"s.
Y he ()ruani/ation asserts that the one of the `sorts, the device that acttrrlly (Irixcs the spikes into the tics. was also malfunctioning. This situation, tire Orfgainiation states, cart alsox cause a spike to riot drive properly car quickly c;ncsu·h. iiTihrririr-rg the: eniph, cc's
production rate. All of these mechanical problems, the t)r{Laniration cotzterids. 4\crc repaired after <'kiiniant eras removed from tile machine.
I lie t)rtcani/ation concludes that given these mechanical problcilis. insufficient 1°-teak-in time, and the miiurnal period Claimant tVas gi\erl in Ahich to improve. the discipline issued iw extreme, unwarranted. trrijustitied 4inc] not srrpt,orted by aiiv flaf.trant ,ilitr,e of Carrier rules. I'ven if' the allegations had been l-rroven, tire Organiratic~rl urges. tile ctiwcilzlitzc· issued is excessive,
l lie (carrier first points out that this is not a discipline cage. rather, it disqualified Claimant. The Carrier asserts that the burden is oil the Organization to demonstrate that Claimant has stttlicient qualifications to run the Automatic `piker X44t)f) 16i in a manner that av=oids a potentially serious incident oil the rails and possible injure to ernplov~ecs or the public. .
On the merits. the Carrier points to the testimony of several Carrier witnesses that (lainiant did not. meet expectations as a Spiker operator. as lie: was operating bclolv tile speeds of the other operators and could not keep tip. The record shows, the Carrier notes. that Claimant's machine was in good working Girder. and Claimant was ·Iiven ample time to qualify oil the `piker but just could not keep up.
Further. the Carrier state;. Roadmasters observed Claimant (in several occasions, li>llovvin~, which then discussed Nvith him the fact that lie Nvas trot meeting productic>ri requirements. Moreover. the Carrier points out. Claimant admitted. during the investigation, that lie was slow oil the machine. This statement. tile Carrier asserts. i5 sufficient proof <}f its assertion that Claimant was properly distlctalitied. '['lie Carrier tir;ges that tile. claim be denied.
VVc ha,-a rarefullv reviewed the record in its entirety=. It is well settled that tile Carrier has tile right to determine employee qualifications, aril such determinations ~;llorrld not lie disturbed by the Board unless they were made In an arhitrarv manner. I -here is no srich showing here. The record demonstrates that Claimant. after a substantial period of time oil the machine. was operating at afiproxirliatell halt' of tile rrlmirxlurn production rate. and the Engineering) instructions required that after a reasonable time an employee regular achieve otatimurn production. Although it is true that lie received the warning and disqualification letters <>n two ciinsecutiv-a day's, the record also reflects that Carrier officials communicated to hire. through his tinge aril tile machine, the treed to increase his production rate, and he offered no indication that he would do So. Instead lie conceded that he was slow. and argued that the Carrier's focus on production numbers was incorrect. and that then should instead fOelrS on clualitV°. Yet there is nothinpt to shove that his duality of work was in any v\a~ superior to that of rill of tile other AtrtOniatiC Spiker Operators who were working twice. as first as lie was. and iii any event it is trot tip to the individual employees to define production standards tfir their johs_ Ills other explanations fir slow performance Aere ~1rcceSsfuilv rebutted by the Carrier. The claim that leis machine \\as delective is contradicted by Mr. Wolkc, the
