PUBLIC LAW BOARD NO. 7564
Case No. 119/Award No. 119 Carrier File No. 10-21-0055 Organization File No. C-21-D040-5 Claimant: S.A. Wall
BNSF RAILWAY COMPANY )
)
-and- )
) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYEES DIVISION )
By leter dated September 23, 2020, Mr. Steven A. Wall was issued a Level S 30-day record suspension and a Three-Year Review Period because of his alleged failure “to safely operate Regulator X0600446 when [he] did not yield at a highway crossing and caused an accident on July 27, 2020 at approximately 0915 hours at or near MP 123.06 on the St Joseph subdivision while working as a regulator operator.” The Claimant allegedly violated MWOR
6.50.2 Approaching Road Crossings at Grade.
The Organiza�on’s claim dated November 11, 2020, from Randy S. Anderson, Vice General Chairman, appealed the discipline and characterized it as unjus�fied and excessive. The Organiza�on requested that the discipline outlined in the Carrier’s leter dated September 23, 2020, be “overturned, and Mr. Wall’s personal record be cleared of this discipline and any men�on of this inves�ga�on.”
By leter dated July 31, 2020, the Claimant received no�ce that “[A]n inves�ga�onhas been scheduled at 0900 hours, Friday August 7, 2020, at…Lincoln, NE…for the purpose of ascertaining the facts and determining your responsibility, if any, in connec�on with your alleged failure to safely operate Regulator X0600446 when you did not yield at a highway crossing and caused an accident on July 27, 2020 at approximately 0915 hours at or near MP
123.06 in St. Joseph, MO while working as a regulator operator.” A�er a postponement by mutual agreement, the inves�ga�on occurred on August 25, 2020, at 0900 hours.
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PLB NO. 7564
AWARD NO. 119
The Carrier avers that the inves�ga�on was fair and impar�al and demonstrated by substan�al evidence that Claimant violated MWOR 6.50.2 by failing to yield the right of way to vehicular traffic at the grade crossing. Claimant admited that he saw the pickup truck as he entered the crossing, but proceeded because he thought the pickup truck was far enough away. The Carrier contends the assessed discipline was not excessive, arbitrary, or unjus�fied.
The Organiza�on asserts that the inves�ga�on was not fair and impar�al. Claimantwas presumed guilty of the charges before the commencement of the hearing. The Organiza�on maintains that the facts in this case clearly show that Claimant had the right of way and did not violate Rule 6.50.2 and that the Carrier failed to sustain its burden of proof.
The Carrier asserts Claimant violated MWOR 6.50.2, which specifies that on-track equipment (including those with ac�vated track shunts) must approach road crossings at grade prepared to stop and must yield the right of way to vehicular traffic. Claimant tes�fied that he was opera�ng a Regulator on the day of the accident and did not yield the right of way to vehicular traffic at the grade crossing. The Claimant conceded that he saw a pickup truck as he entered the crossing but judged it sufficiently in the distance for him to proceed safely. The Carrier proved by substan�al evidence that Claimant’s ac�ons violated MWOR 6.50.2.
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.
PLB NO. 7564
AWARD NO. 119
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