BNSF RAILWAY
(Former ATSF Railway)
Case No. 408- Award No. 4t)8 Claimant: _fcsc(4hs
Carrier File No. 1-4-1 1-08Ci
C)rganiration File iota. 1190-13C?-1 I3.C'I ~1I
I'Uhlie kixv Board No, WO. upon the: whole record and ,ill file evidence. finds that the parties herein are Carrier and Fmplayees within the meaning of the Raikkav Labor Act, as amended: that the Board has jurisdiction over the dispute herein: and that the parties to the dispute were given due notice «fthe hearing rind did participate therein.
Claimint, Leonard Jacobs, was hired by the Carrier in 2007, Oil January ?1. ?E)1 1, ti>liowing a request by the Organization, the Carrier notified Claimant to attend an investigation to ascertain the facts and deternnne his responsibility. if any, for his alleged I:~ilurc. o» J,1nuary 19. ?Oil. to fallow procedure while operating the h.-Rex ~>tt TRl'X0t)17 <>n the Gallup Subdivision, causing tile: machine: t<, collide with the vehicle {directly behind it. l lie Notice rccitod that (I'll rnant's c«nd).tct Involved possible violation off MOW'( tR 1. 1 ."_ A1crt and ,Attentive and l] 2_j. f A 1-tichine c >perator ILolcs mi,I Res pottsihiIities. Following the tmcstwatton. «n March 7. 'ttl I. the Carrier dismissed CIaitnant "cffccti~e imtncdiatelv" tier these violaticsns.
I-he undcrlvitts7 !acts of this case litre riot in dispute. Claimant participated itt it t'arrier crane operator traminst class held in Kansas. following \6ich he ~cas afforded tile Opporttlnitv tee Nd ore the fF-Pex crane. I Ic received the position and the Carrier assigned liachine Operator -Trainer Santla12o I_. Oonzale; to physically- train Claimant oil tile vehicle.
()it .Ianuarv 19. 2011. Claimant's fiMurth day on tile nnachinc, glide \Ir. (ionzalcs \v;ts still assigned to train Claimant. the Carrier assigned Mr. Gonzales to operate another machine. Claimant continued to operate his machine on his own. ~tncl \,vas traveling front a hr-railing mode to a cork mode.
Accordimt<j tile testimony of several witnesses at the imewtip,ation, the proper procedure !'or SLICIt a n tote is for ythe operator to completely loN~er the: trout end so the rear tires acre on the Around, Iodvcr the hack end so tile ruhher tires are on the t~ronncl, and tteXt 111,11, tile guide wheels domt. Claimant apparently put doWn the guide wheels first, which are free-rolling and have no independent brake. I`he vehicle only has hrakc capability when III hv--rail mode or oil the rubber wheels.
Althcta2h Claimant attempted to stop the %chicle by pushing the brakes, he gas ttnahle t« stop heCattSe the t2uide wheels were down. l'lierel-Ore. tile vehicle was in free roll, tend. as it \"as oil a (.Trade. it rolled backwards and apparently collided \\ith another ~.ehicle. Iltcrc acre no details of the collision. Or attV dantatge reports. in the investiuation record.
Carrier Production Manager Keith Valentine testitied at the imesti',ration that lie believed Claimar-it understood that the guide wheels ~~cre frecmieclimt and not desit'ttod to brake. Ile acknowledged that Claimant was 1-Jew t« tile n1achitteat the tune of, tile incident and had peen assigned a trainer. Iloweier. (7c stated, C`l.rit~t~tnt had attended the training school in Kansas. where it was Mr. V'alentine's understanding that tllc` I)rftcTdttru b=ed also been covered. Mr. Valcmirtc also maintained that :Mr. ( Wtwalcr told hint that he had Bone over the proper procedure for this sort «l'movc ~\ii17 Claimant. Flicrefowe. Mr. y'alentiric concluded, in his opinion Claimant had bee°n properk trained to ira\el tile machine. ;end was aware of the proper se<Ittence I«r stoppini; it.
Mr. Valentine acknowledged that lie held never run the !-Rer crane, had rtcG-er had anv trainim: eon the machine, had never attended the crane training school and wits 1l<t aware c}f its full curriculum. No materials were entered into c%idence demonstrating the curriculum «r content ofthe training class.
I ravehnu Mechanic Gretworv DeLuca also testified at tile invcsiittation. f ie stated that fie (lid not I:now ih Claimant vas aware of' the proper procedure fttr the transition at issue but Claimant ]tad been it) crane school where operators are taught how to properly t>et on and off hy-rails. IIe. too. ackx~o~OecIL),rrd that he had not yet attcalded that training class.
,Mr. DCIAIC,1 further stated that the proper procedure i:; covered in the oPerat«r*s manual «hich i5 maintained in the cab ot~the machine, ,and the procedure is also denoted pan placards on the door entry to the machine and on the wind«tj t<r the right ()I' the operator's sent. I lierel~etre, lie stated. Information its to the proper procedure is reaifily available in the machine. Not relevant sections of the operator's tmtnual, or depictions of the placards. \1crc entered into e\ idence.
Mr. Gonzales also testified tit the investiation. explaining that lie arrived after the incident happened and did trot wee what had occurred. I fe stated that he vas supposed to be training Clainiant. but lie had been pttt <n 4t different machine so lie wus trot availahle to ,tilde Claimant and help bin 7 out. Ile testified that based upon hi:; observations he believed Claimant «-as capable of operating the machine safely. but Claimant was not fully aware oftransition from the hy-rail to the rubber et-heels.
Mr. Gon zafes stated that he (lief not believe this procedure eia; so important that it was cane ofthe first thin4,,s fie would discuss with Claimant, because at the bevinning \,Ir. Gonzales did the travelinL,. Ile stated that lie had not relayed to Claimant how critical it \\as not to have the: guide \vhects freewheeling and the need to have the; rubber or h>,°-rail \Ohccls n take contact. I Ie explained that cfn the two occasions prior to the incident ~~hcn Claimant had traveled the machine Mr. (ionzales was oat the Lromtci, taking hint thrcmlt the steps. and there \1as n;x mishap. Ile stated that it ~\as ltis Job to he Claimant`s trautcr, but he was placed on ;mother machine that day=, which was not his job. and therefore there was a -mess up." I le stated that when he was placed can tile othcr machine lie Informed the fOreman that it vas not his job. its lie vas supposed Ic) train Claimant. hilt the forctn<rn replied that Claimant ltad hy-railed -<t e:e~rtplc crf tunes."
\'(r. t imaralcs Curther testified that lie did not feel that at the tinac crh the incident Claimant understood that the wide \,ohecls here frce~ch~°eliettw and that il'hc (lid trot hake contact kith the other Mheels, the hv-rails or the rubber, the na;achtne \,oottld he treewlaeelintg. that was a critical part of the operation, lie 'A"Itc(L and 1w had 1)('t discussed that particular point with Claimant until aticr the incident.
Nlr. (iotaiales testified that lie had attended the crane tminintt. school, and tire procedure at issue here was not discussed during, that traininv. l lc stated that lie ec>ttld tact Sit\, \oohether there was anything, in the operaator's machine or other guides in the taiachine that \k-«uld speciii' the proper procedure. hecauyc lie head been h~-railing 1t1r cars, to the point that it was common sense 1'or him.
Mr. Gonzales testified that when lie First learned to operate the taaachitte that lie 'Ound out the ~uide wheels are not desk-ned to brake the wane way C_'Uniant did, that iS. lie had at similar incident tthere lie rolled and panicked and it thretN him ()If' hecausc lie believed lie had the qualifications to run tile machine.
Assistant Foreman John Raav testified at the inxestittaation that all lie knevk about the incident was that Claimant put the 4ouide wheels doutt~and the machine rolled lack into the Chemtron. lie stated that lie -,tag aware that Claimant ~~a5 ,till in traitairu-r and the indi%idual oho \kas .;opposed tea rte training film was opercatin<g another machine art the tittle. lie state(] that lie kaaew Claimant still needed training. aaithcugh lie helie\cd lie could run the machine. but Ile 'A~as lacking experience behind the controls its lie had only been oil to couple of dta\,s where he actttallV ran the: tnatc13it1c. I IC stated drat O<ianaaat had spent perhaps only tour hours an the machine, tVith respect to setnn;- the ;guide %~heels dozen before the rubber t\hcels made contact with the grcattnd all(] transition from hy-rails to the: rubber \Oieels. lie stated that it was ,onicthinli! Claimant should ha\e hottMl hclitre evcti attempting to train on the machine but lie did not know 11' Claimant actuallt knevv it. Ile stated that he had not seen Claaimant attempt it) make this transititf heiore.
Claimata testified at the investigation that prior to the incident lie had operated the `I--Rex only twice. and that by tile time of the investi(!ation lie knew that there %k-as at specific procedure l'cr transitianing from travel to work triode but lie xvaas not aa\.vare of it at the time ol'the IincIident. fle stated that lie had felt lie was cluaalilicd to drive the vehicle. lout did not know the procedure and did not realize at the tune that tile niantacr ]it which lie perf<>rmed it was txnsale. Ile explained that lie ]list (lid not re;dire that it would he it problem and he would rust have brakes. especially since lie vva~ cart ;art incline.
Claimaant denied that the operating rnttnuaal and sticket_~ \%hich %wt.ald guide <tn operator in the proper procedure were in the vehicle. stating that tlacre was nothing that W-Ould indicate tile proper ~:e(luencc t(rr the tame Ile trade. l fe c.xlaI:tined thaat there %\,its at taaatttaal but that it did not indicate as step-by-step procedure. t 'laimant stated that lie hchcved lie Nk<ts sate tea drive the tiaachine. halt teas not traitaed III flat: transition and (lid 1101 realise thcrc would he to problem or Ile tVcraa1d not Il:atC ;ttIcrttpte(l the tnancttver.
( l,lititant ;tcknmk ledrxcd that lie had attended the crane training class but mainttuned thist there had hccti tiE~ trainint.; concerning tran,;iti«nin~) from era%°(~leto e~ork mode.
File Carrier's I'ohc\ fair Fnaplo\ce Pertorntance AccounEabilitv tP'C:21'A). firm Idcs that an ennploveo Involved in <t serious incident. tens enumerated in the police's Appendix 11, will receivc tt 30-day record suspension. lvith a 1? or .~O-month rckieiv period depending upon the employee's previous record. A second serious incident within the r;~\,;cv~ period call subiect tilt: employee to dismissal. Appendix 13 lists as serious violations numerous safetv infractions as ~kell as "other serious kiolations" of ('terrier rules. C'laimant's personal record shows a Level S. I t)-day actual suspension. \kith a 1 2month review period, issued MaN w(). 2009, fair violating the Garricr's Violence in the \%torkplacc Pc>licv. 1t also shoos a 3()-day record suspension, %kith ct 16-month rc%ie%>, period. issued .August 26. 2()1() for causing) a machine collision.
hlie Carrier tirst notes that although the claim ~eeks that Claittiant he c«mpcrisated tier all ~kaf:c loss commencing February I 1. 2011 , hip, paNroll record ~ticit*s that lie worked until March 1, 2011. 1,IIoreover, the 'Carricr states, tile investigation Was held oil 1°ehruarv I 1. '01 1 rather than Julc 1 5. 2010 as alleged Iv, the (>r,ttmiation.
()it the merits, the Carrier asserts that the case is not complicated. Indeed. the Carrier states. tile Organization does not dispute that C'lainiant-~ faifurc to properly operate his C(ltciptrtettt caused an accident. Instead. the. ('airier points out. [lie ( trttani/atian"s only argurncnt is that Claimant leas not qualified in tile machine's operation. f fo\'revcr. tile Carrier ;isserts. Claimant «a:s not in tact operating tile tnachitic,
belt \%,is mereli "trtt~clinu." or moving. it. f 1Tc Carrier notes the testimonN of Roadmaster Valentine that, in his opinion. Claimant was ;ufticictal\ trained to move tile machine. '0oreo\er, the Carrier states. both Mr. Valentine and lKraveling, Mechanic ( ireg Deluca testified that traieling procedures for this machine arc laut.flht tit tile crane school in Kansas Citv, which Claimant attended. t he Carrier notes that Mr. Valentine explained that Claimant should have beat aware of the proper operation sequence. l'hcretOre, tile Carrier states, the violation has been proven by substantial evidence.
As for the penaltN-. the C'arrier asserts that Claimant's dismissal tvas appropriate ~:i~°cn the seriousness of his otfcnse and personal record. ['flat record. the Carrier notes, shows that this was Ulaktiant's third Level S serious violation «ithin a _>6i-month period, %~hilc the: F'FPA pro\ ides that even two such violations within that period may subject alt employee to dismissal. file Carrier urocs that tile rlaitn be denied.
I-lie ()r4_attization asserts that the discipline assessed against Claimant it; extreme. ttnt~arrantcd, unjustified and not supported by the flagrant abuse E~lart~ C"ttrricr rule. I lie facts c>f, this disc shcr\i-, the C)rtaaniz.ation ttrtoes. that Claimant k ioldted no Carrier rules. but rather operated his % chicle in accordance with the training he rccvik cd at tile C'arrier's I :clinical (raining (:`enter Lind b\, tile field trainer v,orking, v~ith him tit? tile I -Rex Crane. III particular, the.: ( )ruani/ation notes, the record. especialll- the testimon% c>t' his assigned trainer, demonstrates that Claintaiit had received no traitiintt concerning tile potcnti;tf hazard lie could encounter \\.lien sic attempted to transition from hy-rail travel to ~kork
mode on I grade. Claimant. the; t)rganiration asserts, had receiXed Only t1W tor fOtrr hours (it"~:<at time" on the I'-Rc: Crane and. cc)ntrarv to plans, had been lcf't alone without ItI'S trainer. 1 his lack <,t' training. rather than any- tailurc hv C'l~rimant. was, the t)ranifatit)n rrrgc,~. responsible 1i)r thin incident.
Moreover, the Organization states, the C'c~r-rier provided no evidence of' contact between the C-Rex Crane operated by Claimant and any other machine or vehicle. C=or yell of' these reasons, the Organization concludes that the Carrier failed to provide substantial evidence to support the charges against Claimant and, even it` it had, the discipline assessed is extreme and unwarranted in relation to the asserted offense. F he t)rganiration therefore urttes that the claim he sustained.
We have carefully reviewed the record in its entiretG. and conclude that the Carrier has failed to meet its burden of' proving C'laimant's guilt by substantial e~ idence. I here is no dispute that C-laimant tailed to pert«rm the proper .,eqtience of nio,,cs, for transitioning his f-flex crane from hy-rail to work mode, near is there ant° dispute that ;is a result the machine rcsultinu %kent into a free roll and, apharcridy, had some sort of collisi«n %kith another \chicle. ~Vc agree with the Orgamfation. ho~ever. that the issue in this case is M5ether Claimant was prc)perlv trained to perform this mote. Such that lie can he held accountable for hit; failure to do so. ()n this record. Ue must ec~r)clLrde that he \\,as not.
hhe Carrier first bases its case that UCairllattt teas strifieientIV trained on the restirnonv of' tu-o Carrier witnesses that the matter was covered in a crane training class Claimant llad attended. However, neither of* those witnesses had ever actually attended the class, and neither demonstrated sufficient familiarity with the curriculum to back up their assertions. More importantly. the two witnesses vdio had attended the training, Claimant rend his trainer. testified that this procedure was not covered in the training. No -,,rittcn c10ctrmCutatic>rz or curriculum was introduced to support the Carrier's assertions LIS to the content of'the training. We do not question the sincerity of the Carrier witnesses* tcstimonv as to what they believed would hate been covered. but it does next appear that there was a factual foundation for their beliefs. The Carrier also asserted that the operating manual and placards in the vehicle denoted the step-b\-step procedure, points Claimant denied. but althouoh such written materials must have been readily available il~ they \%ere ire tact present. they kvcre not provided during the investispation. We therefore find these points not proven by substantial e4idence.
1-Iorco\er-. c%err if` the matter had been addressed in the training. the Carrier ohviousIv did next believe it teas suflicicnt to allow ~m ernploe=c:e to simply operate a ~chicle. as it assigned Claimant a trainer to help film become ~proticient. Hit Carrier chose to remove the tniincr on Claimant's fourth day on the vehicle, during a time k0hcrt lie had very little experience can the \,chicle arid Gras still in tr;uning, ;.end left hurt try lirnction (In his otsn. lfi,,; trainer testified that lie had ~~alked Claimant throurwh this procedure ()ill\' twice. and had not informed him that the guide eOleels were freewheeling ;end lie nceded it) h::rve either the hy-rail or the rubber m heels on the ground. Moreover,
the tr;riner aci;rrl7«Icdgcd that lie had connnitted exactly the -;anie crror ,-.hen lie lir't hqualt «(7c'ratlm- [lie niachfne.
In conclusion. ~,vhilc perhaps Claimant could have been incjre skillful. we find that the Carrier has Called tee meet its burden of proving its primary assertion. that Claimant teas sufficiently trained to properly make the move at issue and thus committed a s<rious tittense by l;ilin to rnakc the move properly. \Ve order Claimant's dismissal o\erturncd and his personal record corrected accordintp, that he he returned try ,wrk and nrade whole Hl ;tccOrdance with the parties` :Ai,rccmcnt.