Case No. 488 - Award l';o. 488 - Rasinskis Carrier File No. I 0-15-0175
Organization File No. 10-SFl3Nl-14149.CM
Claim of the System Committee of the Brotherhood that:
. The Carrier violated the Agreement commencing December 16, 2014 when Claimant, Steven H. Rasinskis (0291997), was dismissed for his failure to properly protect employees and equipment on Main 2, between Milepost 7 and 15, using Form B #1896 when he failed to notify all employees and workgroups prior to clearing Train #BNSF 7804, through his limits at approximately 11:05am on >-.:ovember 6, 2014 while working as a Sectionman on the Chillicothe Subdivis ion. The Carrier alleged violation of Maintenance of Way Operating Rule (MWOR) 15.2 Protection by Track Bulletin Form B and \1WOR 12.4 Work is at Multiple Locations over an Extended Distance.
As a consequence of the violation referred to in part 1 the Carrier shall remove from Claimant's record this dismissal and he be reinstated, if applicable, with seniority, vacation, all rights unimpaired and pay for all wage loss, commencing December 16, 2014 continuing forward and/or otherwise made whole.
FINDINGS:
Public Law Board No. 5850, upon the whole record and all the evidence, finds 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 given due notice of the hearing and did participate therein.
Claimant, Steven H. Rasinskis, had been employed by the Carrier since May, 2014. On l'\ovember 10, 2014, the Carrier charged Claimant to attend an investigation to ascertain the facts and determine Claimant's responsibility, if any, in connection with his alleged failure to properly protect employees and equipment when he failed to clear train(s) and notify all workgroups that were being protected by the Form B at approximately 1105 at approximately 1105 on I 1/6/2014, working as Sectionman on gang TSEC 1385, on the Chillocothe Subdivision. Following the investigation, the Carrier found Claimant guilty of the misconduct alleged, in violation of MWOR 15.2 Protection by Track Bulletin Form B and MWOR 12.4 Work is at Multiple Locations over an Extended Distance, and dismissed him from service.
The facts of this case are largely undisputed. At the time of the inciden t, Claimant was working as a gang Scctionman on the Chillicothe subdivision. He was the employee in charge of a Form B between Milepost 7 and Milepost 15. He had three workgroups, including Signal Maintainers, under the protection of that Form B.
Claimant acknowledged at the investigation. that the incident began when, having notified all of the work groups working under his Form B, he talked a train through his limits. Shortly thereafter, he talked another train through the limits, without first notifying any of the employees . A Signal Maintainer had to call Claimant to stop the train.
Claimant testified that he believed the employees would stay clear of the tracks until he told them they could resume work. He admitted that he did not conduct a job briefing before sending the employees to work on the track. He stated that the first train traveled on Track 1, and the second on Track 2, which was where the Signal employees were working. He explained that he believed they were on Track I .
The record indicates that earlier that day Claimant told Roadmastcr Hector Analis, who assigned Claimant to run the Form B, that Claimant told him he did not feel comfortable running Forms Bs, and he did not want to get into trouble again because he already had a similar violation on this record . Mr. Analis testified at the investigation that he asked Claimant about his conce rns, and he replied that he felt uncomfortable with the busy location, and they talked about the locatio ns of the flags, because Claimant told him there were so many they had to put up.
Mr. Alanis stated that Claimant had worked as a Sectionman in that area so he would be in a position to run the Form B. He did not have anyone available to help him with the actual running of the Form B. He told Claimant he would have someone help with placing the flags, which seemed to be Claimant's primary concern.
Tra1.:k Inspector Shawn Miller testified at the in vestigation that Claimant had expressed concerns about working in the area. They were addressed in proper way, and Clai mant just had to learn to take care of them. Cla imant never told him he did not feel completeยทl y safe, or did not want to endanger anyon e. Mr. Miller stated that perhaps it would have been desirable to provide more assis tance with communications, but there
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was no one out there to do it, and management had walked through the entire process with Claimant.
Mr. Miller testified that he believed management had addressed Claimant's concerns, and Claimant was empowered, under Carrier policy, to voice feelings about his fears concerning the flags, but that was not where the violation occurred. Rather, it was that he failed to confirm that employees were clear of the track before allowing the train to proceed through his limits.
Claimant testified at the investigation that he felt unprepared to do this job. He had learned the evening before that he would be running this Form B, and he had not run them with multiple work groups before. He explained that it was a very busy area, with radio issues. He did not know the territory very well. He maintained that he had not been given a time or a meeting place for a job briefing with the employees working under his protection. He stated that the employees called him, asking to be put on his list, and he would write it down. He added that the Signal Maintainers did not tell him where they would be working.
Claimant acknowledged that when he expressed his concerns to Roadmaster Alanis, he sat down and explained, on the track chart, where they were and how the Form B would operate that day. Ile acknowledged that Mr. Alanis got him help with placing the flags.
Claimant's personal record shows a formal reprimand, with a 12-month review period, for an incident on October 7, 2016 where he failed to properly protect employees and equipment using his vehicle when he set out outside his authority limits, and a Level S Record suspension, with a 36-monlh review period, for failure to comply with the Carrier's electronic device policy when he was recorded by Drivecam talking on his cell phone in other than hands free mode.
The Carrier asserts that that Claimant's violation is clear. While he attempted to argue that he was insufficiently familiar with the area and the proper placement of the flags, the violation here was that he cleared a train through his limits without ensuring that the Signal workgroup employees were clear of the track. Claimant admitted his violation. This admission, as is well-recognized. is sufficient for the Carrier to meet its burden of proving Claimant's guilt by substantial evidence. Whatever concerns he had abo11t the flags, the Carrier stresses, arc irrelevant.
As for the penalty, Claimant committed a serious violation which could have put lives at risk. He was a very short-term employee and this was his third such violation. Dismissal of an employee who put other employees' lives at risk cannot be deemed unfair, arbitrary or capricious.
The Organization raises procedural and substantive objections to the discipline assessed against Claimant. In particu la r, the Organization argues that Claimant had worked only three weeks in the Corwith area where this incident took place, and had only
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