Award No. 51

Case No. 51 NMB Case No. PLB-07602-000051


PUBLIC LAW BOARD NO. 7602


Parties to the Dispute:

BROTHERHOOD OF MAINTENANCE OF WAY ) EMPLOYES DMSION-IBT )

)

v. )

)

BNSFRAILWAYCOMPANY )


Carrier File No. 10-15-0050 Organization File No. C-15-D040-6

Claimant - Jesse S. Cardona


BACKGROUND:


This claim challenges the Carrier's imposition of a Level S 30-day record suspension with a 3-year review period for the Claimant's alleged failure to provide proper track protection in October 2014. At the time of the events giving rise to the discipline, he had worked for the Carrier for twenty years and was working as a Foreman on a Mobile Gang based in the Powder River Division.


On October 9, 2014, the Claimant was working with his mobile gang when they discovered two defects on Track 100 in the Alliance Yard, approximately 120' apart. Claimant contacted the Yardmaster and asked if they could have the track for an hour to effect the repairs, which involved cutting out the old track section and replacing it. The Yardmaster granted the request, and when Claimant got back to the work area, one of the gang members had already set out the required red flags and derails that indicate the track is fouled. The derails are a safety device that will derail any oncoming train or other track vehicle that would otherwise strike the individuals working on the track. They lock in place, although the locks do not affect the functionality of the derails; the locks' sole purpose is to discourage theft or unauthorized movement of the derails. Claimant and his crew set to work. The two defects were located in an east-west orientation to one another. The crew parked its


boom truck at the western defect and cut out and replaced it first. Claimant was doing the cutting himself. When they were finished with the first defect, the gang moved east to the second one. At some point, Claimant sought and received additional time on the track from the Yardmaster. While the Claimant was cutting the second defective track section, one of the other gang members moved the derail that had been beyond the first defect closer to where the crew was now working.


The Carrier has a System Engineering Operations Test Team whose purpose is to visit various work sites throughout the system to ensure that employees are complying with the Carrier's work and safety rules. Sometime before 4:00 p.m. on October 9, 2014, Troy Hunter, Manager of Operating Rules for the Team, was driving on an overpass in the Alliance Yard and noticed Claimant's crew at work. He stopped to observe, and concluded that the derails were spaced too closely, in violation of MWOR 6.3.2, but he did not interrupt the crew at work. At some point, one of the gang notice someone standing by and told the Claimant, who was focused on cutting and whose PPE limited his peripheral vision. Claimant went over to Hunter, the two men introduced each other, and Hunter told Claimant that the derails were too closely spaced. In addition, the derails had not been secured with locks are required by the Rule. Claimant told Hunter that they had the locks but had not put them on the derails. Because a violation of MWOR 6.3.2 is considered a "Critical Decision/Deadly/Rule Violation," Hunter arranged for Claimant to be removed from work for the remainder of the shift and sent for drug and alcohol testing. Hunter sent an e-mail to the local Roadmaster, Jeremy Wegner, notifying him of what had happened. The incident description read:


The exception occurred when the employee did not place derails the required distance for the track speed on other than main track, while replacing a rail defect. In addition, he did not place an effective locking device on either derail.


The Carrier sent Claimant a Notice of Investigation dated October 10, 2014, informing them that an investigatory hearing had been scheduled "for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged failure to place derails the required distance on other than main track and alleged failure to place an effective locking device on either derail, at approximately 1359 hours, on October 9, 2014."



Following a mutually agreed postponement, the hearing was held November 6, 2014. At the hearing, the Claimant, Mr. Hunter and Mr. Wegner testified to the facts as above. Hunter testified that MWOR 6.3.2 requires that derails be placed at least 150' from where the crew will be working if track speeds are in excess of 5 mph, and 50' if 5 mph or less. The derails he observed were not that far apart. The Claimant testified that he had thought that the gang was in compliance with the track protection rules. He had obtained track authorization from the Yardmaster. When the crew set up at the work site initially, the derails were set up properly, more than 300' apart. When the crew finished with the first defect and started working on the second one, one of the crew members, Mike Long, moved the west derail without being instructed to do so. It appears that the Claimant was focused on cutting out the rail at the second defect and was unaware that the derail had been moved. Claimant stated his belief that Hunter had seen Long move the derail because he (Hunter) approached the crew as Long was putting it down. Claimant testified that they had not locked the derails because the gang was actively working in the immediate area and there was no danger that someone would come and steal them. Claimant said that he typically "eyeballs" the distances for placing derails. When asked if he understood the rule at issue, the Claimant stated:


You know, as many times as you read this rule, I want to say yes, I do and I, in, in working with it, uh, I just know at, at the time you know like I say being nervous and not knowing it would have been, the explanation would have been really nice or some paperwork to see it, because even..• looking at it now I mean you're even hearing this kind of talk about-you know even Mr. Hunter-the vagueness of the rule•.. and it's really up to perception and interpretation but look, I mean do I have it? Do I see it? Yes. Do I fully understand everything that's written here, it's really open to interpretation, to whoever's working or using it, so.


The Claimant did not see Hunter measure any distances. On rebuttal, Hunter testified more specifically that, using the 40-foot length of the boom truck as a measure, the two derails were placed approximately 20' on either side of the defect the crew was working on. He was not asked about and did not testify to whether he saw Long move the west derail or whether the derails were properly placed before it was moved.


The Carrier's Decision Letter, issued November 24, 2014, concluded that the Claimant had failed to place derails the required distance on other than main track


and had failed to place an effective locking device on either derail. These actions put him in violation of MWOR 6.3.2, Protection on Other Than Main Track, and assessed a Level S 30-day Record Suspension with a three-year review period. The Organization filed a timely appeal protesting the Carrier's decision. The parties having been unable to resolve the matter through their grievance process, the matter was submitted to the Board for a final and binding decision.


According to the Carrier, the Claimant acknowledged in his testimony at the hearing that the derails were not set up in compliance with MWOR 6.3.2, which establishes his guilt. Track protection is a critical component of safety, and violations of the track protection rules are considered serious safety violations. The penalty under the Carrier's PEPA Policy for a first serious safety violation is a Level S 30-day record suspension with a three-year review period, which is what was assessed in this case. The conduct having been admitted and the standard penalty having been issued, the claim should be denied.


The Organization contends that the Carrier failed to sustain its burden of proof. In contrast to what Mr. Hunter testified, MWOR 6.3.2 does not actually give any specific distance for placing derails; it only states that the derails should be placed "near" the red flag, without specifying what distance constitutes "near." In addition, the level discipline imposed on the Claimant was excessive and arbitrary. Track protection had been established with the Yardmaster. The problem with piggybacking several working groups on a single track and time authority is that the EiC, who obtained the authority and knows exactly what authority he asked for and was granted, is often working miles away from other working groups. Questions of authority may arise, but employees are under pressure to complete their work within the limited period of the authority granted. When the EiC is remote, employees in other working groups may assume that their authority is broader than it is-which is what happened here. If Claimant's working group had had its own track authority, he would have known exactly what it was. The Carrier has failed to establish that the Claimant intentionally, willfully or maliciously violated the rule in question. He was not deliberately negligent or careless; he was just trying to do a routine task within the time allotted. The discipline assessed was excessive and should not be upheld.


FINDINGS AND OPINION:


Public Law Board 7602, upon the whole record and all the evidence, finds that the carrier and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934. This Board has jurisdiction over the dispute involved herein.


Claimant was found in violation of MWOR 6.3.2, Protection on Other Than Main Track, which states, in relevant part:


To establish protection on a track other than a main track, controlled siding or any track where CTC is in effect, use one or a combination of the following:



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