PLB NO. 7564
AWARD NO. 115
PUBLIC LAW BOARD NO. 7564
Case No. 115/Award No. 115 Carrier File No. 10-21-0020 Organization File No. C-21-D040-1 Claimant: E.J. Hofpar
BNSF RAILWAY COMPANY )
)
-and- )
) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYEES DIVISION )
By leter dated October 6, 2020, Mr. E.J. Hofpar received a Level S combined suspension (27 days actual, 3 days record) and a one-year review period because of his alleged “failure to stop short of a regulator while opera�ng a tamper (X5400366), resul�ng in impact and machine damage to the tamper on the O’Neill Subdivision at approximately 1150 hours on September 9, 2020.” The Claimant allegedly violated MWOR 6.51, Maintaining a Safe Braking Distance.
The Organiza�on’s claim dated November 12, 2020, from Randy S. Anderson, Vice General Chairman, appealed the discipline and characterized it as excessive and prejudicial. The Organiza�on requested that the discipline outlined in the leter received by the Organiza�on on October 9, 2020, be “overturned…and...[Claimant’s] personal record be cleared of the discipline and any men�on of the inves�ga�on” and that Claimant “receives all hour of pay, both �me and over�me hours he lost while being unjustly held from service for 27 days pending results of [the] inves�ga�on.”
By leter dated September 10, 2020, the Claimant received no�ce that “[A]n
inves�ga�on has been scheduled at 1000 hours, Friday, September 18, 2020 at … Fremont NE … for the purposes of ascertaining the facts and determining your responsibility, if any, in connec�on with your alleged failure to stop short of a regulator while opera�ng a tamper (X5400366), resul�ng in impact and machine damage to the tamper on the O’Neill Subdivision at approximately 1150 hours on September 9, 2020.”
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PLB NO. 7564
AWARD NO. 115
The Carrier avers that the inves�ga�on was fair and impar�al. Further, Claimant’s admission provided substan�al evidence regarding the viola�on.
The Organiza�on asserts that the inves�ga�on was not fair and impar�al. Claimantwas presumed guilty of the charges before the hearing. Moreover, the Carrier failed to meet its burden of proof because the record lacks sufficient facts and evidence.
Claimant is charged with viola�ng MWOR Rule 6.51, Maintaining a Safe Braking Distance which provides that “it is the responsibility of all on-track equipment operators to maintain a safe distance between their equipment and all employees and other equipment within their work zones.”1 Further, “[R]oadway workers must not enter a machine’s work zone without first Communica�ng with the operator to establish safe work procedures.”2 During the inves�ga�on, Claimant admited he violated MWOR Rule 6.51 by backing into a machine. Claimant’s admission provided substan�al evidence regarding the viola�on.3 The Carrier’s
Policy for Employee Performance Accountability (“PEPA”) classifies this viola�on as a serious offense. PEPA, Sec�on IV (C), Serious Viola�ons (Level S) (1)(a) states the following:
Serious Viola�ons include … a viola�on of any work rule or procedure that is intended to protect employees, the public and others from a poten�ally serious injury or fatality.
The discipline assessed was in accordance with PEPA’s Viola�on Handling Matrix.
Claim denied.
1 Carrier Exhibit 4.
2 Carrier Exhibit 5.
3 Carrier Inves�ga�on p.29-30, 32-33.
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PLB NO. 7564
AWARD NO. 115
This Board, a�er considera�on of the dispute iden�fied above, hereby orders that no
Award favorable to the Claimant be made.
Zachary Voegel, Organiza�onal Member Joe Heenan, Carrier Member
Melinda Gordon, Neutral Referee
DATED: June 20, 2023
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