PUBLIC LAW BOARD NO, .7544
Brotherhood.of Malntenanc..of Way )
Employ4"1S Division• IBT )
Rall Conference )
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and )
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500 Une Railroad Company (CPJ )
CaseNo.67
AwardNo.. .&"I
System FIia No.. D-03-17-445-()2
Background
On January 20, 2017, the carrier Issued to Claimant D, Noble a notfceof formal lnvestfaatlon and
he1arlng. The notice stated,. Jn partt thefolfowln1:
"The purpose of this lnvestlgatfon/hearin9 ls to determine the facts and circumstances and to place responslbllfty,11' any, In connection with alleged failure offoulfns a controlled trackonJanuary 1&, 2017without the proper track protection. This: Indicates a possible violation of, but Is not llmlted to, the·following rules:
l> OTS 29.a Roadway Worker (Employees)
On February 16, 2017, the formal lnvestfgatlon and hearing convened wherein dalmant and his representative presented testimony and six (6) exhibits andexamined the Carrier's witness and eight (8) exhibits..
On March 3, 2017, the Director Trade and Structures·Chicago notified Claimant that the evldentlary record established dalmant's \Jfolatlon of th charged rules. B1:1sed on the vlolatfons, severity of the Incident and Oaiman(s past dlsclpUnary record, CP assessed Oalmant a thirty (30).cfay actual suspension',
On March 17 2017, the Organization and the Carrier agreed to progress Claimant's dlsdpllne dispute for resolution before thlt Board usingthe abbreviated procedure provided for In Paragraph (I<) of the PLB Agreement.
Flndlpg
Public Law Board No. 7544, upon the Whqle record and all theevidence, finds that theparties herein are carrier and Employes within the meaning of the Railway Labor Actiasamended; that the Board has Jurtsdlctfon over the dispute herein; and that the parties to the dispute weregiven due notlceof the hearing and did participate therein.
PLBNo. 7544
Case No. 67 AwardNo:67
Consistent with the PLB Asreement for this Board, theevldentlary record In this proceeding Iscomprised of the followlnr, (AJ notice of investigation,(B) transcript oflnvestlgatlon and all related exhibits., (C) dlsclpllne assessment fetter and (D) on-property correspondencerelated to pro1resslon of the claim.
At the outset of the hearing,. the Organization objected to the Carrier's recordatlon of the proceedfn1 with thetranscrlptlonlst located at..an off slte; remote ltXatkm, Experience shows, BMWEstates, thfs; method of transcription can result Inan Inaccurate and Incomplete record. The Organization requested the transcrlptlonlst be physically present to record theproceedllilL CP denied the.request stating an.
off•slte transcrlptlonfstls.often used for these proceedlnp. The Board finds the transcript of the proceeding complete andaccurate which Is sufficient for thistribunal's use tn rendering a.decision. The Board alsofindsthat the Incident date of January 16., 2017, In the noticeof formal Investigation ls a typographical error; thecorrect date Is January 17, 2017,. This typosraphlcaJ error dfd notaffect th Organfzation's and Clatmant's presentation of a defenst to thecharged rules violations.
onJanuary 17, 2017, Cfalmantwa amember onafive(S) person dlstrlbutt()n crew with anassignment topick upscrap rail tiesonthe carrier's main line two(CP 2) Inthe Bensenvllle Yard. The dlstribt.ltlon crew foreman was unfamlllar with theterrltpry andtrain movements wlthfn the Yard; the crew's foreman. requested asslstanOil throush hfssupervrsotfor train movement and track protection. The crew foreman's supervisor contacted theYard's Roadmaster whel'e\lpon Foreman Martinez was assigned to asslstthe distribution crewwith protection and movement'. curing Claimant's forty:-one (41) years of service with the Carrier performing Maintenance-of-Way workfrom the canadlan border In North Dakota andMinnesota toward& Bensenville Yard, he has Incurred notrack protection rules vfolatfons and no CP offlcfa, hasInstructed him that signal Indicators are not proper protection kJr Maintenance-of-Way emplovees. There Is no dispute thatClalmanft a crane operator, had proper track protection with Form llfor performing work on CP 2.
Tmt Issue for the Bo.ird Is whether there Is substantial evldencuupportlng the Carriers decision that Claimant did not have proper track protection on January 17, 2017, when he wasa member of a crew that entered a manual Interlock based on a slanat Indicator thereby fouling a c<;introlled.track (metra one, metra two) beyond absolute slgnats. CPstate$ that proper protectfon would have been "9.S.3" verbal orwritten permission, track and time beyond metra main. Form 8 orseNltes oh conductor pilot. CP states.that red sfpl Indicators stoptrains but provide no protection for employees.
The Organization statesthat Claimant received proper protection based on the B-17 towetoperator Instruction for the crew ta enter the manual Interlock on signal Indicators with shunted equipment (road, rafl.and attached carsJobstructlnatrack. Once the green sl1nalw&J Issued, the toweroperator placed red stops at the eastward and westward signal blocks to keep trains from entering the lntertock. The Organilation notes that Claimant's track protection west of the B-17 Interlock W8$ the absolute signal thatstopped. The absoluteslsnaJ provided the track authority In On Track Safety for controlled Track,
llfabsolute signals atstop t. As BMWE notes, the Roadmaster acknowledged there Is no specific: rule prohibiting Maintenance-of-Wayemployees fromoperating on signal Indicators.
Notwithstandingthegreen signal; thecarrier states that signal Indication Is not track protection for Maintenance-of-Way employees because they are not qualified on operat1n1 rules for signal tests. Proper protection would have been trad< and time or Form B, CP states that Claimant could have challenged and refused the tower operator's Instruction to proceed as violating on,track safety
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PLB Nll.7544
CaseNo.67
AwardNo.67
procedure or rule. Since Cfalmant didnot chaHenge the tower operator's Instruction andviolated on track safety procedures or rule by not having proper track protection to proceed, Claimant violatedthe following rules:
ors29.2- Roadway Worker {Ernptoyees)
Each employee hastheright to challenge. In good faith, any Instruction
to violate.an on-track safety procedure or rule. They shall Tnform the Employee In Charge thatthe necessary on track safety provlslontto be Used attheJoblocatlon do not comply with the Rules. They shall remain dearof the track until theconflict.rs resolved. Confllctresolutton procedures are found rn OTS Rule 31.0 (Right to.Challenge On Track safety).
Employees must not perform any work that wlllfnterfere with thesafe Passage oftrains; unlesson track protection Is provided"'
. QJSa1,2- lffloonsiblllttesof theRoadway worker
Follow On-Track Safety procedures.
Do not foul a track except when necessary In theperformance of duty,
Ascertain that On·Track Safety Is being provided before fouling a track.
Refuse any dlrectfve tovlolate an On·Track safety rule and promptlynotify your Supen,lsor when the safety provisions; tobe applled attheJobsite, do not C()n,ply with therules.
The Board finds there IsInsufficient evidence that Claimant vlolated QTS 29.2.1 4. tn this regard, given Claimant's 41 yearaof experience and the assistance prqvlded by the Roadmaster's staff to obtain track protection, there is. ® good faith basis forchallenslngand refusing the a-11tower operator's tnstructlon. The tower operator sranted verbal perml$$lon ("go ahead proceed with the slsnals"l for thecrew toenter the manuat Interlock and traverse track to absolute slsnals; The Board findsthere Is Insufficient evidence that Cfalmantvlolilted1 S because, aswrittenand applied llterallvi Cfatmant only passed through the manual Interlock anddidnot perform anf work withinIt. Cfalmantperformed work onCP:a with proper protection·- i=onn B. for thereason$ and findings that Clal"lant did.noi violate OTS 29.2,,i.14 and S, the Board finds.there l!c Insufficient evidence ta ffnd Claimant violated OTS 31.2 • Responslbllltlesof the Roadway Worker;
Since there arenoroles.vlolatlons, the Beard willsustarn theclafm and grant the Organization's requested remedy, In doing so, however, the Board recognfzes theenduring and dilrv emphast& for on track safetY such that havfng proper track protection before fouffn1track Isreinforced throughout the
territory. Cfafmant lson notice that the circumstances presented In thisclaim are considered a rules violatlon by CP andwlUbe treatechccordlngJy should dalmant repeat these circumstances.
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PLB No.- 7544
CaseNo.67
AwardNo.67
Claim sustained.
Patrick Halter
Neutral Member
Anthonytic,;:
Carrier Member
Dated onthisday,
of&c ,20.ll,
Ryan Hidalgo;
OrpnbatJon Member
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