)

v.

)

BNSFRAILWAYCOMPANY )

Claimant - Barry Hastings

headquartered out Brush, Colorado. Driving the utility truck

been assigned to him by the Carrier, he went to a local restaurant, Santiago's, to get a breakfast burrito. Santiago's is located on a frontage road just off the highway, with parking stalls in front perpendicular to the building. The Claimant pulled into one of the spots and looked in the driver's side rear view mirror to see if the coast was clear for him to open the door and get out of the truck. Unfortunately, he failed to see a gray pickup truck that was just entering the adjacent parking stall, and when he opened his door, it made contact with the truck, causing damage to both vehicles. The right rear passenger side of the pickup truck was dented. The driver's side door on Claimant's truck was bent and would no longer close, and the truck to be towed to a body shop.

The Claimant immediately called Roadmaster Hailey Brown report the incident, she instructed Roadmaster Cason to go to scene to

investigate and to conduct a test on the Claima nt.1 When Cole arrived,

the test.

other

The issued a notice investigation purpose of ascertaining the facts and determining your responsibility, if in connection with your alleged failure to properly operate company vehicle resulting in

"

and the parties having .....,,,.,._.

Board for "'"'"""'"'"'"'

an

it has been appealed

According the Carrier, the case is a simple one: the Claimant opened his door a truck pulling into the adjacent spot, causing damage to the truck, which is Carrier property. The evidence establishes that truck did not run into the door when Claimant it. Instead, Claimant opened his door into another that was already pulling into the adjacent spot. His actions led to the damage of Company property, and he violated MWOR 1.19. The discipline assessed was the lowest level possible under the PEPA, and there is no basis for the discipline to be overturned. The Organization argues that the Carrier did not meet its burden of proof, in that there were no the and the evidence in record does establish that the accident was caused the Claimant, not the other driver. Moreover, the discipline was harsh for what was a simple accident could have happened anyone. The Claimant was honest and forthright from the beginning and even provided the photograph of the other truck that the Carrier used in deciding

Public Law Board 7602, upon the whole record and all the evidence, finds

the carrier and the employee or employees involved in this dispute are respectively and employee within the meaning of the Railway Labor Act, as approved June

,..,&:1.rtu,,h,i,,n over the dispute '"' '""1' ' ""

The found the Claimant in violation of MWOR 1.19, Care of which states: "Employees are responsible for properly using and caring railroad property.. " Organization points that the Claimant was notified that

be into his alleged ''failure properly operate" his Company is only defective if it does not the accused employee and the

Moreover, emphasis on the phrase "properly operating vehicle" is inappropriate under the circumstances of this case. In one "'"'"''"''""•

the Claimant was operating the utility truck in that he was driving it around in the

course of his work. However, he was not literally "operating" the vehicle when the accident happened, in that it was stopped and parked, with the engine turned off. "Operating" a vehicle implies that it is in motion, which Claimant's truck was not. The decision to cite MWOR 1.19, Care of Property, was not inappropriate-the

The Organization's procedural arguments are not persuasive.

The substantive question before the Board is whether the Carrier met its burden of proof that the Claimant had violated MWOR 1.19. The evidence in the record before the Board is sufficient to conclude that the Claimant was responsible for the contact between his vehicle door and the gray truck that was pulling in to the spot at Restaurant on May 17, 2014. The Claimant described what happened at the investigatory hearing. Importantly, he testified that he had not checked the center rear view mirror to see if there were any vehicles approaching from the frontage road. Nor did he physically look over his shoulder to

damage circumstance would have been the front of the truck. The damage to the rear side of

gray truck is consistent with Claimant's opening the door after the truck was already at least partway into the spot, if not all the way in. Both vehicles were properly within the lines of their there is no would

the gray

conclusion

truck-the definition MWOR 1.19-is supported by the evidence.

acc:1mim:. when was involved a collision on February only

before this accident, that resulted in damage to his vehicle. He was disciplined for a first Standard violation and given a formal reprimand with a one-year review period. The incident before the Board today happened within the review period the prior discipline. Accordingly, the Carrier was justified in applying the principle progressive discipline assess the penalty a second Standard violation on Claimant for the May 17, 2014, accident.

AWARD

Claim denied.

Date