NATIONAL MEDIATION BOARD PUBLIC LAW BOARD 6394
Hrothcrhood of Maintenance of Way Employeic )
Divii-iun - llrJ' ll'lll Con Ference )
)
And )
)
Norfolk Southern Railway Company )
(Former Norfolk & We11tcrn Railway Company) )
Case No. 78
Award No. 78
Richard K. Hanft, Chairman and Neutral Member
Jed Dodd. Employee Member
D. Ih K-.-rbr, Carrier Member
..Claim oflhc System Committee ofthc Brotherhood thnt:
The Currier's discipline (discipline) of Messrs. W. Springer. B. Miles and
L. Day. issued by letters dated December 21. 2015. in connection with their alleged improper perfomumce of duty in that on November 20. 201 S. they tailed to ensure that the switch at Parish Foods. Mile Post JR 3.8 was properly lined and locked as normal before their work group gave the dispatcher permission at 2:00 p.m. lo hrini Train K43 through their limits at truck speed. n. ulting in Train K43 entl.!ring the Industry track at Parish Foods. knocking off the derail and running through the industry gate before stopping was arbitrary. capricious and unwarranlt..-d (System File MW· HARR-15-38-LM.937 NWR).
As a consequence of the violation of the violation referred to in Part 1 above. Claimants W. Springer. B. Miles and L. Day shall receive the maximal remedy allowed under Rule 30(d) of the Agreement."
FINDINGS:
Public Law Board 6394. upon the whole record and all of the evidence. finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act. as amended: and. that the Board has jurisdiction over the dispute herein; ond, that the rnr1ics to the dispute were given due notice of the hearing
thereon and did participate therein.
Public Law Board No. 6394
Award No. 78
This Award is based on the facts and circumstances of this pa11icular case and shall not serve as a precedent in any other cases.
Atlcr thoroughly reviewing and considering the record and the parties· presentations. the Board finds that the claim should be disposed of as follows:
On November 20. 2015. Claimants in this matter were assigned to help install rubber at a grade crossing that was to be paved. B. Miles. who holds a bid-in position as an Electric Welder. was assigned to serve as RWIC for the crew's assigned tasks on that day. The record shows that he received Track Authority at 7:38 a. m. that morning. Claimants and one additional roadway worker completed that task by about 8:45 a.m. The RWIC assigned the roadway worker to remain at the crossing and assist the paving crew wh -n they arrived.
Claimant Miles intended to pilot a consist of smoothing gang equipment operated by Claimants Day. Tamper Operator for the Day and Claimant Springer. usually a hack hoe operator. from the Indian River Line to the Delmava Linc. Both Day and Springer had Machine Operator seniority.
The Claimm1ts proceeded tn the equipment. a Tamper and a Ballast Regulator that was tied-up at MP 15.5. The RWIC' dropped the other two Claimants off at the equipment and then proceeded to set the Hi-Rail Truck on at MP 15.55. drove it north of the switch. lined the switch and derail. nagged the equipment out and restored the switch and derail.
.The RWlC was leading the consist in the High-Rail Truck followed by Mr. Day in the Tamper and Mr. Springer coming up the rear in the Ballast Regulator. RWIC Miles. during this move was contacted by Train K42 wanting to move south U1rough his limits. The RWIC infonned the train that he would clear the mainline by pulling the equipment onto the industry track at Parish foods at JR 3.8.
The record reveals that the RWIC stopped the High-Rail Truck at Parish Foods. opened the gate to the industry track. and removed the derail. While he was doing that. Claimant Day cleared. unlocked and lined theswitch into the Industry track. The RWIC moved his High-Rail Truck to the next crossing and set the tmck off the mainline while the equipment was-heing moved into the clear. The RWIC walked back to the spurand once the equipment was in the clear. restored the derail and switch and gave Train K42 time to pass. Once the train had cleared and he verified it would not he making a reverse move. he set the truck back on the mainline and trammed north to the Parish Foods switch. leaving room for the equipment to clenr the switch. He removed the derail. threw the switch and flagged the equipment out onto the Main.
Public Law Board No. 6394
Aw.mt No. 78
RWIC Miles testified at the investigation that he then locked the gate at Parish Foods. locked the derail and thought he locked the switch. The gang then trammed north without making a facing point move over the switch. All three Claimants testified at the investigation that they did not make a facing point move although they were aware of the Rule requiring the some. The equipment trammed to and was cleared at MP IR 1.1. TI1e RWIC removed the Uigh-Rail truck from the main and went back and picked up the operators. The crew then went to lunch.
At 2:00 p.m. Dispatch contacted the RWIC for permission to run Train K43 through his working limits at track speed. The RWIC granted pennis. ion. Train K43 received time and proceeded to run South through the limits.
At Parish Foods. K43·s Engineer noticed that the switch was lined for the turnout move and threw the train into emergency. The train ran through the switch. knocked off the derail and ran through the Industry Gate before coming to a stop.
At the Investigation. Mr. Miles corrected the Hearing Officer's statement by
emphasizing that he was sure that he restored the switch at Parish Foods. but all three
(3) Claimants also testified that they knew that the Ruic ret1uired them to make a facing point move. but they failed to do so.
The evidence adduced at the investigation clearly establishes that Claimants were negligent and disregarded the rules of the company in not (X'!rforming a facing point move. Moreover. Rules t 81 and 828 definitively places responsibility for restoring switches mt only on the employee handling the switch. but also on the O(X'!rators of equipment using the switch or derail equipment.
Claimants all admitted at the investigation that they tailed to follow the rules. The Machine operators both admitted that they knew they were required, when possible. to make a facing point move. TI1at move was quite possible. and required. under the conditions on that day. They were overly complacent. Complacency. in this induslry can get people killed. While this was a most severe transgression. there were some unique circwnstances that mitigate against dismissal.
Claimants were nnt in their normally assigned positions. The RWK' was nonnally assigned as an electric welder. but because of his foreman seniority. he was handling the switch and. while all Claimants were responsible. he was most responsible.
Of the several different moves that Claimant Miles coordinated that day. his only failure. while quite significant. was restoring the switch properly at Parish Foods. His co-workers should have been double checking him. but they to<> failed in their
Public Law Board No. 6394
Award No. 78
Responsibilities. Otherwise, Claimants demonstrated that they could be valuable employees.
Thus, Claimants L. Day and W. Springer shall be reinstated, but without compensation for time out of service. Claimant B. Miles shall also be reinstated without compensation for time out of service, but with the additional condition that before exercising his foreman seniority again, he must go through the thirty (30) day qualifying period.
AWARD
Claim susrainc<l in accordance with the findings. Carrier is directed to make this Award effective within thirty <lays folio · the date that two members of this Board affix their sih aturcs thereto.
D. L. Kerby. Carrier Member
Dated at Chicago, Illinois. January 2, 2018