BROTHERHOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION - IBT RAIL CONFERENCE
vs

 BNSF RAILWAY COMPANY




STATEMENT OF CLAIM:






FINDINGS:

Public Law Board No. 7048, upon the whole record and all 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; and that the parties to the dispute have participated in accordance to the Agreement that established the Board.


On August 31, 2010, Claimant was directed to attend a formal Investigation on September 9, 2010, which was mutually postponed until September 24, 2010, concerning in pertinent part the following charge:


P. L. B. No. 7048
 Award No. 107, Case No. 107


On October 21, 2010, Claimant was notified that he had been found guilty as charged and was dismissed from service.


It is the Organization's position that the facts indicate that Claimant was operating a Ballast Regulator on August 30, 2010, that was involved in an accident with an automobile as it passed over a railroad crossing; at Mile Post 124.5. It argued the evidence shows that the Claimant approached the crossing;, that was partially blocked by an overhanging tree and other vegetation, prepared to stop if necessary when an automobile struck his machine. Claimant locked both directions and the crossing was clear. According; to it, an investigation conducted by the local police at the scene of the accident found the driver of the car guilty of failure to yield thus it reasoned the Claimant was without any guilt. It further argued that if the Carrier had shown the Claimant had been guilty of anything, which it did not, the discipline exercised was excessive. It concluded by requesting that the discipline be rescinded and the claim sustained as presented.


It is the position of the Carrier that Claimant was involved in an accident that could have been prevented if he had been more careful. It argued that contrary to the Organization's position the fact that the automobile driver was cited did not relieve the Claimant from his responsibility to yield to vehicular traffic before passing over a railroad crossing with his machine. It further argued dismissal was appropriate due to the seriousness of this violation coupled with the fact that this violation was his second Level S within a one year period and Policy for Employee Performance Accountability (PEPA) subjects an employee to dismissal. It closed by asking that the discipline not be disturbed and the claim remain denied.


The Board has thoroughly reviewed the transcript and the record of evidence and it is determined that the Investigation and appeal process met the guidelines of Rule 13(a) the Discipline Rule and Appendix No. 11.


There is no dispute that Claimant was involved in a vehicular traffic accident on August 30th while operating a Ballast Regulator. (fin pages 17 and 18 of the transcript Roadmaster A. Whitney was questioned about the incident as follows:






                                Page 3


    such as trains. And, you know, vehicles wouldn't be as aware to our machines coming, coming across a crossing as a, as a train would be.


      David Cunningham: Does the fact that the driver may have been cited for a, a motor vehicle statute of the state of Louisiana, relieve your, the Machine Operators on this rule?


      Aaron Whitney: No, he has, l mean, he has a responsibility to stop, ensure the way is clear, and proceed through the crossing."


      On page. 25 of the transcript the questioning; of Mr. Whitney continued as follows:


      "David Cunningham: to this instance, did both operators, the one in the vehicle and the one, the Ballast Operator, have an obligation to yield and, proceed cautiously?


      Aaron Whitney: That's correct.


    David Cunningham: Did either operator do that?


      Aaron Whitney: No." (Underlining Board's emphasis)


Roadmaster Whitney's testimony was not refuted that the Claimant was not relieved of his responsibility to yield to vehicular traffic nor was he innocent because the police only cited the automobile driver.

 On page 31 of the transcript the Claimant was asked about the railroad crossing at Milepost 124.5 whether his machine had the right of way or did vehicular traffic have the right of way. Claimant responded as follows:

    ".Jared Bentley: Basically the stop sign's here, and it's not a stop sign. They do have the right of way here, ..." (Underlining Board's emphasis)


Claimant's admission that vehicular traffic had the right of way at the grade crossing site of the accident is consistent with MOWOR 6.50.2 that states in pertinent part:

    "On-track equipment .must approach all grade crossings prepared to stop and must yield the right of way to vehicular traffic ...." (Underlining Board's emphasis)


The record is clear that substantial evidence was adduced at the Investigation that the Claimant was not prepared to stop at the crossing and was guilty as charged.
 P.L.B. No. 704'8
 Award No. 107, Case No. 107
 Page
The only issue remaining is whether the discipline was appropriate. At the time of the
 incident the Claimant had a little less than live years of service. The instant violation was his
 second Level infraction within a one year period and the PLPA Policy subjects an employee to
 potential dismissal. '1 'he Board finds and holds that the discipline exercised in this case was not
 excessive, arbitrary or capricious, therefore, it will not be set aside and the claim will remain
 denied.

 AWARD
Claim denied.

 William F2. Miller, Chairman & Neutral Member

 Samantha Rogers, Carrier M mber

 Award Date: . ~~ .-Z

 David D. Tanner, Employee Member