Brotherhood of Maintenance of Way Employes Division & BNSF Railway
Patricia Thomas Bittel
I. S. Sanchez was issued a Level S 30-day Record Suspension and one-year review period on September 21, 2016 after an investigation found he was in violation of MWOR 6.3.2,
6.19 and 1.6 for failure to provide proper track protection.
Background Facts:
On July 7, 2016 Claimant was working as a Flagger for a construction project on the Council Bluffs Subdivision. The Carrier maintains that during his shift, Claimant left his position without notifying employes not to foul the track while he was gone since there would be no protection. Claimant admitted he did not notify the employes that he was leaving, In the view of the Carrier, this evidence suffices to establish the offense in question.
The Organization characterizes the suspension as excessive and arbitrary. It notes Claimant left the area of a locked switch to investigate train movement. He advised Roadmaster Gibson, who acknowledged his departure. In its view, he cannot be faulted for Gibson’s failure to assist. Instead, Gibson remained in his vehicle and did nothing to help. It was Gibson who asked for the location of CG04, and when it could not be found, Claimant went to its last known location. The Organization maintains Roadmasters Gibson and Bertoni instructed Claimant to improperly place a derail on the main line, and when he did, he was disciplined yet they were not. Gibson stated he did not recall acknowledging Claimant’s departure.
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Opinion of the Board:
Gibson’s failure to recall Claimant’s notification of departure does not constitute a denial that this occurred. He simply did not recall whether it did or not. Claimant’s recollection was specific. When he was unable to locate CG04 per Gibson’s request, he decided to go look for it and so notified Gibson. Though the Board credits this testimony, it does not absolve the Claimant.
The Carrier does not fault Claimant for going to find CG04; it faults him for failing to tell the employes he had been protecting that he was leaving them unprotected so they should avoid fouling the track. The thrust of the Claimant’s argument is that because Gibson knew he was leaving, it was up to Gibson to assist by informing the employes. The Board simply does not agree. It was Claimant who was providing these employes with their protection, not Gibson. Though it would have been better had the two discussed the issue of notifying the employes, without doing so it was logical for the Carrier to consider this the responsibility of the Claimant. Rather than telling employes not to foul the track, he simply left. The Board find the Carrier was within its rights to expect Claimant to notify employes when they went from protected to unprotected status.
AWARD:
The claim is denied.
_ Patricia Thomas Bittel
Chair and Neutral Member
James Rhodes Zachary Voegel
Carrier Member Labor Member
Dated: January 28, 2019