BROTHFRHOOD CAF MAINTENANCE <)F 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 Fmployee and Carrier are employee and carrier within the meaning of the Railway I,atxor Act as amended; and that the Board has jurisdiction over the dispute herein; and that the parties to the dispute have participated in accordance tee the Agreement that established the Board.


On February 19, 2011. Claimant was directed to attend a formal Investigation can Uebruary 25, 2011, which was mutually postponed until March 8. 2011, concerning in pertinent part the following charge:







    on Wednesday, FebruarY 16, 201 1, at approximately 1300 hours at Mile Post 19!).77, in Roanoke, Louisiana, resulting in approximately $101) damage and, violation of Maintenance of Way Operating Rule 6.5().3, Equipment Components Clear and, Engineering Instructions Rule 1 4.3.3, Maintaining Roadway Equipment."


On March ?5, 2011, Claimant was notified that he had been found guilty His chargcd and was assessed a level ;S 30-Day Record Suspension with a three year probationary period.


It is the Organization's position that the transcript indicates there was a great deal of Efisc:ussiun about "work mode" versus "travel mode" and the common practice tin the gangs did neat dictate that chains be applied fir the travel duration ol'6S feet across an eight hoard crossing where the work continued right up toy the edge and began immediately after the crossing. It liirther argued that the C'lairnant, a dedicated employee, who never denied the incident occurred was saddled with a "serious rule" violation fc)r a minor accident that resulted in no injuries, no lost production and an estimated $ 100 repair costs. It concluded by requesting that the discipline he rescinded and the claim sustained as presented.


It is the position of the Carrier that Claimant failed to properly pin crud lock the work heads on the Anchor Spreader machine he was operating that caused the work heads to lower and strike a road crossing resulting in damage to the machine. It further arguccl tlaGat the Organization's argument that there was only a $100 damage to the machine: was taken out of` context as Roadcnaster J. Hanson's testimony at the !fearing was only referring to the broken lights when he mentioned the $100, but review of the transcript reveals that he went can to state that the work head was bent, the hose was broken and the machine vas wrecked. therefore, according to it, "wrecking a machine" is considered a serious violation. It closed by asking that the discipline not be disturbed and the claim remain denied.


The Board has thoroughly reviewed the transcript and record of evidence anti has determined that the Investigation and appeal process met the guidelines of Rule 40 the Discipline Rule of' the former IiN Agreement and Claimant was afforded his "due process" Agreement rights.


(here is no dispute between the parties that the Claimant was involved in an accident can February 16, 2011. at Mile Post 190.77. (7n page ?5 of the transcript the Claimant was questioned about the incident as f611ows:


      "pave C.`unningham: Okay, Mr. Hanson had mentioned the term pinned and locked. Were pin-, were the workheads pinned and locked, as rewired by the rule.


      Richard L. Dorsey: Well they was, they was pinned up to the maximum height,

                                1'.L.B. No. ?0dt3

                                .ward No. 99, Case No. 99

                                Page 3


    and till, until I bumped it. They wasn't lucked because the chains, I didn't lock the chains that holds the workheads up from hitting anything. I didn't, I didn't lock them up."


    On page; 26 «C the transcript the questioning of the Claimant continued as followed:


    "David Cunningham: [lad you locked the pinhead, 1 mean locked the workheads, even with your mid-section momentarily striking one of those levers, would, would the chains have prevented the workheads from lowering.


    Richard L Dor.ey: Yes, sir.


    David Cunningham: Mr. Dorset', are you familiar with Maintenance of Way Operating Rule 6.50.3`.'


    Richard L. Dorsey: Yes, sir.


    David Cunningham: Did you comply with that rule, sir'.'


    Richard I,. Dorset': No."


'here was considerable discussion about whether Claimant's machine at the tine of the incident was in "travel mode" or "work mode" and did it need to be chained before it moved over the: crossing. On pages 3.5 and 16 of the transcript Roadmaster I lanson was asked that question and answered as lolloww:

    "It would, it, I think it would pertain to both modes. When you're go across a road crossing you're in travel mode. Your work starts when you get on the other side of the crossing. Your work ends when you get to the crossing. When you're going through the crossing you're not doing any work, you're just traveling from one side to the other. In which case you gotta pin up and lock up before going across switches, or road crossings."


Hanson's testimony was not effectively rebutted that when Claimant ended his work on one side ofthe crossing he should have chained up while he traversed the: crossing before starting work on the other side. Hanson's testimony coupled with Claimant admission of fault proves substantial evidence was adduced at the Investigation that the Claimant w;as guilty as charged.

 I'he only issue remaining; is whether the discipline was appropriate. The Organization argued that the accident was a minor whereas the Carrier stated it was serious. ltc~admaster
                                P.L. E3. No. 7048

                                .ward No. 99, Case No. 99

                                Page 4


! lanson described the damage to the C'laimant's machine oil pages 1 7 .end 1 ft of the transcript ail pertinent part as f«ll<xNNs:


    "...:And one of the, one of the lights was broke and hanging down. And 1 think it wax SIf)O worth of damage on the machine. The workhead, the cylinder that raises and towers the workhead wax bent. And went up there and went to every, everything else was okay, but the machine wax wrecked. I think there was a broken hose on the machine."


( lanson testified he thought there was S lf)t) worth of damage t« the C'laimant's machine and the Notice of Investigation stated in pertinent part, ' ....resulting in approximately $100 damage...". therefore, the Board is satisfied that the damage to the machine was minor in nature. File Board does not excuse the Claimant's error, however. in this instance it finds and holds that the discipline was excessive and is reduced to> Formal Reprimand with a one year probationary period that is progressive, corrective and in accordance with the spirit of' the Carrier's Policy t«r Fmployee Performance Accountability (PEPA). I`he Board also recommends that the Claimant he careful in the future to adhere to all Carrier Rules, Safety Rules and Policies.


                AWARD


Claim sustained in accordance with the Findings and the Carrier is directed to make the 1GVard effective on or before >() days following the date the Award was signed by the parties.


          William R. Miller, Chairman &, Neutral Member


`~Gunantha ltogers. E.'arneemlxr David D. Tanner, Employee Member

Award Date:/r_I'__..__~r-