)

)

)

)

D. L.

a

position or from a Company vehicle or operating

The Claimant entered service with the Carrier on September 1978, in and Building Department.

On September 2013, the Claimant was working as a Traveling Mechanic

Pasco (Washington) driving a maintenance truck, vehicle ,..u.,,., ,.

Shortly after 0900, Claimant was traveling on go to equipment shop when made a left-hand turn that brought him a private crossing,

He noticed a Street. appeared to the

was traveling east on the track from when in it was traveling

"''n"'"'"'.. to Claimant testified that he was looking toward the shop slowing to cross the track when he looked up and saw that the train

bis on his and was

train its least twice it saw approaching the track, train into emergency mode to try stop short

the crossing. Claimant's and the actions were enough to avoid a ne:,m-,on

The issued a of investigation by

the purpose of ascertaining the facts and determining responsibility, if any, in connection with your alleged failure to comply with BNSF Maintenance of Way Operating Rules Maintaining a Safe and Attentive, when

the 'l[JWPHUlrU

Following mutually agreed postponements, the investigatory hearing was held

scanning over there as I wa, approaching where I needed to drive in, uh, looking for Doc. And, uh, I did see the train, saw the crossing bucks come down and, uh, for some reason in my head, I felt that the train was just going he was on track going up toward east the and I, uh, I, I disregarded it after that....

thetrain's a time, looked at the tracks and saw the train coming toward him. He stated that he "killed" the truck then as he how the was. Ultimately, the

Claimant testified that

Following the investigation, by letter dated November found Claimant guilty violating MWOR

MWOR Alert and Attentive, and MWSR 12.l.2 Railroad The letter also set forth the discipline assessed:

3

Public upon and all the evidence, finds employee or involved in dispute are respectively carrier and employee within the meaning the Railway Labor Act, as approved June Board has over the dispute involved

Claimant was charged with violating MWOR 1.1.1, Maintaining a Safe MWOR and Attentive; and MWSR Railroad at the hearing, Mr. Niles effectively admitted that he had

The real crux of this case the level of discipline that was

"'"'ct""'"" an accident whereby a locomotive engine two days---causing damage to both

In Claimant's case, his personnel record establishes that he was .,,.....,n ......,.."'

discirtli111ea for the same

vehicle or equipment and permanently disqualifying him

position as a Traveling Mechanic, in addition another S record suspension­ were Draconian overkill, essentially punitive in nature. One of the fundamental principles of industrial that the penalty should be commensurate with the infraction, but arbitrators in general, and the Board particular, recognize that employers should have some leeway in deciding what is "commensurate."

this another S record suspension without more would only repeated the prior discipline that Claimant received in February 2011 and May 2010.

purpose progressive discipline increase the level of discipline in order to a message to the errant employee that his performance needs to improve, it is not that the Claimant understood the messages he had been sent it

was appropriate for the Carrier to increase the level of discipline for the September Without question, could have increased the duration of the suspension or imposed an actual suspension.

Manager.

of your evaluations, the Company restriction on your operation of BNSF equipment only." That lest

the Claimant received a clean bill of health from EAP and

The Carrier's decision to permanently disqualify the Claimant his long- position as a Traveling Mechanic is more problematic. There nothing the record to indicate why the Carrier decided on that course Nor is it immediately evident purpose would by such a permanent ban. The for which Claimant was had nothing with the performance of, or his ability to perform, duties and responsibilities of a Traveling Mechanic. The restriction on his operating Carrier vehicles and equipment limit his ability perform as a Mechanic as restriction

1as1e,1: the purpose the additional ban unclear. ban or

.............,...,,,.... would be understandable. difficulties with MWOR 1.1.1 and MWOR the Carrier could reasonably be expected have had about the abilities requiring re-establish his qualifications would not have been inappropriate. permanent ban on the position,

purposes.

or Considering all circumstances

that the Carrier's decision permanently to disqualify the Claimant from his position as a Traveling Mechanic was both arbitrary and excessive, and that portion of the discipline assessed against him for the September 24, 2013, crossing accident shall

noted he would able to as a ability to and equipment was

- ·-·-· •uWaS asame:CblilllC,-, •.u -·

..........,....,,,.,..,. was indeed punitive in nature.

after consideration the dispute identified above, hereby orders that an award favorable to the Claimant in part be made. The Level S 30 Day Record Suspension with a three-year review period shall remain on his record, but he shall permitted, following appropriate EAP and medical evaluations and any necessary retraining, to operate Carrier vehicles and to work as a Traveling Mechanic. The Carrier is ordered to make the Award effective on or before 30 days following the

date the Award transmitted the parties.