BEFORE PUBLIC LAW BOARD NO. 7590 CASE NO. 54
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISJON
V
BNSF RAILWAY
(Former ATSF Railway)
BNSF FILE NO. 14-16 -0296
BMWED FILE NO. 2433-SLl3S 1-163 7
Claimant: J. Rasch
STATEMENT OF CLAIM: ''Cla im of the System Committee of the Brotherhood that:
The claimant sha ll be made whole for all financ ial losses as a result of the vio lation , including compensation for: I. ) straight time for each regular work day lost and holiday pay for each holiday los t, to be paid at the rate of the position assigned to the claimant at the time of removal from service (this amount is not reduced by earnings from alternate employment obtained by the claimant while wrongfully removed from service); 2.) any general lump sum payment or retroactive general wage increase provided in any applicable agreement that became effective while the claimant was out of service; 3.) overtime pay for lost overtime opportunities based on overtime for any position claim ant could have held during the time claimant was removed from serv ice, o r on overtime paid to any junior emplo yee for work the claimant could have bid on and performed had the claimant not been removed from service; 4.) health, dental and vision care insurance premiums, deductibles and co-pays that he would not have paid had he not been unjustly removed from service commenc ing June 22, 2016 , co ntinuin g forward and /or otherwise made whole. All notations of the dismissal should be removed from all Carrier records.
T he carrier or carriers and the employee or emplo yees involved in this dispute are respectively carr ie r or emplo yee within the meaning of the Railway Labor Act as approved June 21, 1934.
Public Law Board 7566 has ju risdic ti o n ove r the parties a nd the dis pute involved herein.
Parties to sa id dis pute were given due notice of hear ing thereo n.
Cla im an t was in volved in a coll is io n between the Hyrail vehicle he was operating on the track and a vehicle that was crossing at a c rossing. Cla imant receive d a lette r dated May 1 9 , 20 1 6 , t hat provided:
An investigation has been scheduled at 1000 hours, Friday, May 27, 2016, at the BNSF Conlerence, Room 305, Bldg 12, 1625 N. LexingtonAvenue, Springfield, MO, 65802, for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your allegedfailure to operate on-track equipment at a speed that allowed stopping within half the range of vision sho11 of a mad crossing and your alleged failure to yield the 1i ght of way to vehicular tl'affic prio1· to colliding with a vehicle at or nenr MP 128.8, Ft. Scott Subdivision, on May 16, 2016.
This investigationwill determine possible violation of MWOR 6.50 Movement or On Track Equipment ilnd MWOR 6.50.2 Approachit1g Rood Crossings.
Contact Michael Watkins at 918-445 2538or Michael.Watkins@BNSF.com with any questions regarding this investigation, postponement or waiver.
Arrange for representation and any witnesses you may desil'e nt the investigation as providedunder applicableprovisions of the labor agreement.
Followin g an investigatio n, Cla im ant was notified in a le tter dated June 22, 201 6:
As a res ult of in vestigation held on Fr iday, May 27, 2016 at 130 0 hours at BNSF All e n Conference Room, 1625 North Lexington Aven ue, S pringfield, MO, 65802 you are hereby dis miss ed e ffective imm ediately from emplo yment wit h the BNSF Rail way Company for failu re to operate on-track equipment at a speed that allowed stopping within half the range of vis ion sho rt of a road crossing and your failur e to yie ld the rig ht of way to vehic ular traffic prio r to colliding with a vehic le at or near MP 128.8 , Ft. Scott Subdivision, on May 16, 2016.
It has been dete rmined through test imony and exh ibits broug ht forth during the investigatio n that you were in violatio n of MWOR 6.50 Movement of On-Tra ck Equipment and MWOR 6.50.2 App roaching Road Crossing s.
In assess in g disciplin e, cons ideration was given to your disci plin e record and the disci pline assesse d is in accordance with the BNSF Polic y for Employee Performance and Accountabilit y (PEPA).
Enclose d are copies of the investigatio n transcr ipt and ex hibits e ntered during the investiga tion. Copies of these documents have bee n sent to your Representat ive.
This letter wi ll be placed in your personnel reco rd.
The Carrie r argues that Claimant saw the on-coming vehicle but did not immediately prepare to stop to yield the right-of-way. Claim ant said he did not try to stop the Hyrail until after he realized the driver of the other vehicle did not intend to stop. MWOR 6.50 and MWOR 6.50.2 clearly state that the driver or operator of on-track equipment must approach the crossing prepared to stop within half the range of vision of the crossing in order to yield to vehicular traffic.
The Organization counters with procedural violation arguments. Further, the Organization argues that Cla im ant thought the other driver was going to stop, that there was no evidence of a job brie fing, and Claim ant bid the position because he would otherwise be forced to take a position in Oklahoma City.
The Board sits as an appellate forum in discipline cases. As such, it does not weigh the evidence de novo. Thus, it is not our funct io n to substitute our judgment for the Carrier's judgment and decide the matter according to what we might have done had the decision been ours. Rather, our inquiry is whether substantial evidence exists to sustain the finding against Claimant. If the question is decided in the affirmative, we are not warranted in disturbing the penalty absent a showing that the Carrier's actio ns were an abuse of discretion.
MOWOR Rule 6.5 and 6.50.2 provide:
On-track equipment must move at a speed that will allow stopping within half the range of vision short of:
Trilln
Engine
Railroad car
Men :and equipment fouling the track
Stop signal or
Der il, moveble point frog or $Witch lined Improperly.
On-treck equipment must not exceed the manufacturer's recommended speed or any of the following speeds, whichever la lets :
Type of Equipment Speed
Hy-rail vehicle& over 15,000 GVW 25 MPH
Bridge Inspection/Hy-rail vehicle& 15,000 GVW or under 45 MPH
Locomotive Cranes (with or without cars) 30 MPH
Trackmobile without Cars 20 MPH
Trackmobile with Cars 10 MPH
Other on-track equipment. 30 MPH
On-track equipment towed by other on-track equipment. 20 MPH
Exception: Speed of on-track eciulpment designe d for high speed tl'8vel will be governed by the System Special Instructions.
Worki ng Limi ts
Do not exceed 20 MPH within establlshed working limits on other than main track.
Do not exceed 20 MPH within established working limits on a main track, controlled siding or other track where CTC Is in effect unless otherwise instructed by the EiC.
When determining the proper speed, take into consideration the following:
Track conditions, such as grade, curvature and r;ill condition
load
Sight distance
Visibility
Other conditions that might adversely affect the safe operation of on-track equipment.
On-track equipment with manually activated track shunts may use the track shtmts only to assist with movements over road crossings at grade.
On-track equipment (Including those with activated track shunts) must approach road crossings il l grade prepared to stop and must yield the right of way to vehicular traffic. If necessary, warn vehicular traffic to protect on-track equipment movement. The use of horns at crossings by roadway machines and hy-rail equipment Is optional at the discretion of the operator.
The Board has reviewed the evidence. There are no procedural violations which void the discipline. On the merits we find that there is substantial evidence in the record to support the discipline. The evidence shows that Claim ant was operating the Hyrail in violation of the cited Rules. He was not able to stop in the Rule-required distance and collided with a vehicle in the crossing. The Rules are clear in their requirements and Claimant violated them.
A review of Claimant disciplinary history indicat s that the instant matter was Claimant's fourth Level violation within a 36 month period. The Can-ier' decision to dismiss Claimant v as not an abu e of Carrier discretion.
Organization Member
Brian Clauss
eutral Member arrier Member