NATIONAL MEDIATION BOARD PUBLIC LA BOARD NO.7408
Parties to Dispute:
UNITED TRANSPORTATION UNION
vs.
UNION PACIFIC RAILROAD COMPANY
)
)
)
) OPJNON AND AWARD
)
) Case No.57
)
) Claimant R. R. Schochenmaier
)
) Level 3-1Day Training
EMPLOYEE'S STATEMENT OF CLAIM:
Claim for·Union Paclftc Railroad Company Foreman R. R. Schochenmaier th.at all notadons of Level 3 - one day unpaid training - discipline be removed from bis personal record, and that he be compensated for all lost time and benefits as a result of this matter, including but not limited to time lost while attending the investigation, all wage equivalents to which entitled, vacation benefits, and all insurance benefits and monetary loss for such coverage while improperly disciplined.
PREAMBLE:
Awards issued punuant to terms and conditions outlined in the Agreement establishing this Expedited Board of Arbitration (Board) will not prejudice the rights of either party, will not establish any precedent and will not be referred to in connection with any other case, agreement and/or dispute resolution.
FINDINGS:
Employee as defined by the Railway Labor Act, as amended; that the Board has jurisdiction over this dispute; and that due notice of the hearing was given to the parties.
By Notice or Formal Investigation dated October 6, 2009, Carrier informed Switchman R. R. Schochenmaier (Claimant) that Claimant's alleged actions caused two cars to derail at approEmate)y 1:10 a.m. on September 30, 2009 while employed as Foreman on Train YCB32R-29 in Council Bluffs, Iowa. The letter requested Claimant, an employee with approsimately 4% years of service, to attend a formal investigation.
The hearing was held on October 12, 2009 in Council Bluffs, Iowa. As a result of . testimony and evidence adduced at the hearing, Carrier determined that Claimant had violated Operating Rule 7.1and, by letter dated October 20, 2009, notified Claimant that a Level 3 Violation, one day training without pay, was assessed. The Jetter instructed Claimant to develop a Corrective Action Plan. The Organization appealed Carrier's action by letter dated January 21, 2010 to Carrier's Assistant Director of Labor Relations, D. B. Foley. By letter dated March 8, 2010, Carrier dedined to revene the decision of its Hearing Officer. The matter now is before this Board for final and binding determination.
Claimant was assigned as yard foreman on remote control yard assignment on the train de.scribed above. While the crew was performing yard switching operations, Claimant was the primary operator controlling the movement of 22 cars being pulled from Elevator 2 Track to double over to Elevator 4 Track to make up an outbound train. When Claimant made the coupling, two cars derailed, causing about $3,000 in damage to the equipment. Rule 7.1 provides in part, "While switching, employees must work safely and efficiently and avoid damage to contents of can, equipment, strocture.t or other property."
Manager of Yard Operations D.R. Erdei was called to the scene following the event to assess the damage and to interview the crew. Entei testified that, once at the scene of the incident. Claimant indicated he bad placed bis Remote Control Transmitter (RCT) Jn speed selector four until reaching a location about two car lengths from the coupling. According to Erdei,_Claimant stated that he then placed the RCT in the coast position and then in the stop position. Erdei stated that the impact caused two empty covered hoppen to leave the rail, fouling three adjacent tracks and damaging equipment. Erdei introduced photographs which demonstrate the incident and the damage sustained by the equipment.
Rule 7.4.1provides in ·part, "Make couplings at a speed of not more than 2 MPH. Remote Control Operator must use speed selection of not greater than 'Couple'." Erdei stated that going from 4 mph to coast and then to stop just prior to coupling caused slack action to be located at the joint and the train to deraiL Erdei testified that Claimant told him that he placed the RCT in the stop position just prior to coupling, and, "He just said
right before he went to the joint he went to stop, and that he'd made the joint a hundred times before;ancf that's how he makes bis a joints."
Several other witnesses testified, including G. J. Boelting, who was the manager on duty. Boeltillg explained that excessive coupling speed caused the derailment and testified that, ''the two empties out of the four was in the middle on a curve, and that's when the can kicked sideways to the south and derailed." Boelting concluded that the empty and loaded cars "caused It to pinch together and kicked out to the side."Boelting stated that an RCL operator is supposed to be aware of the loads and empties to maintain proper controL Claimant gave a different version of events from that of Entel and of Claimant's 705 report prepared immediately after the incJdent. Claimant's explanation was not persuasive, "I was a little distraught over the incident, so my mind wasn't too clear on the details[.)"
The Board finds that the Carrier bas demonstrated by substantial credible evidence that the derailment was caused by an excessive rate of speed during coupling operations. The testimony of Erdei and Boeltiog, and the photographs of the scene following derailment together with the laws of physics all suggest that the derailment was caused by excessive speed. However, the record indicates that neither of twin event recorders functioned; they did not allow for downloads of actual speeds.While the results might have been helpful, the Board finds their absence does not prevent a fair investigation.
The Board sustains the Level 3 discipline:, but the facts warrant mitigation. The basis for mitigation is 1) the dual failure of tbe digital event recorden and 2) the absence of maintenance repons for the remote control devices, both under control of Carrier, together with 3) a conflicting eyewitness statement; and, in addition, 4) testimony that Claimant was one of the "better employees in the yant" who could be trusted "to work safely and efficiendy". The Carrier is directed to pay Claimant for one day of training and to compensate Claimant for all lost time and benefits as a resuJt of this matter, including but not limited to time lost while attending the Investigation, all wage equivalents to which entitled, vacation benefits, and all insurance benefits and monetary loss for such coverage.
AWARD
The claim Is denied consistent with the above mitigation and findings.
Dated at Washington, DC
July 10,2010
g:. rS&rdtiltl
Ezio E. Borcbini
Chairman and Neatnl Member