Brotherhood of Maintenance of Way Employes )
Division - IBT Rail Conference )
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An<l )
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Norfolk Southe rn Railway Co mpan y (Former )
Case No. 225 Award No. 225
N_o_rfo_lk &_W_es_tern_R_ailw_ay_Co_mp_an_y) ____ _))
Richard K. Hanft, Chairman and Neutral Member
D. M. Pascarella, Employee Member
D. L. Kerby, C arrier Member
STATEMENT OF CLAIM:
" Claim of the System Committee of the Brotherhood that:
The Carrier's discipline (time served actual suspension that began on Decemb er 5, 2015 and ended at 11:59 p.m. on February 7, 2016, plus revocation of Claimant's Roadway Machine Operator seniority o n the Eastern Region and his DPG Machine Operator seniority) of Mr. K. Via, issued by letter dated February 5, 2016, in connection with his alleged improper performance of duty in that at approximately 3:20 P.M. on December 4, 2015 while he \Vas operating Ballast Regulator BR 30038BX near Mile Post R59.0 on the Virginia Division, he failed to sto p with.in half the range of vision and maintain a vigilant lookout as requir ed by Norfoll< Sout hern Operating Rules and as a result, collided with a hi-rail truck, causing significant damage to both vehicles was arb itrary, exces sive and not pursuant to a fair and impartial investigation (Carrier's File MW-ROAN-15-61-LM-988 NWR).
As a result of the violation referred to in Part 1 above, Claimant K. Via shall be compensated for all lost wages and privileges unimpaired."
FINDINGS:
Special Board of Adjustment Board 1048, upon the whole record and all of the evidence, finds and holds that Employee and Carrier are employee and canier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over
Spec ial l3oa rd of Adjustment No. 1048
1\ ward No. 225
the dispute herein; and, that the parties to the dispute were given due notice of the hearing thereon and did participate therein.
This Awar d is based on the facts and circumstances of this particular case and shaU not serve as a precedent in any o ther cases.
t\ fter thoroughly revi,ev,ing and considering the record and the parties' presentations, the Board finds that the claim should be disposed of as follows:
Claimant in this matter was working as a Ballast Regulator Machine O perator along with a Tamper on the smoothing gang on December 4, 2015 at a road crossing at M. P. R59.0. When the pair finished working on the crossing, they were to tram their machines nort h toward Payne to tie up for the night. They communicated the same over the radio.
Unbeknownst to them, an1\ ssistant Track Supervisor (" AT S") and an Operations Supervisor Trainee were performing track inspections southward from Payne to M. P. 59 in a hi-mil vehicle.The ATS contacted the RWIC responsible for the track authority where the smoothing gang was operating, briefed with him and received jo in t occupancy for the track.
The ATS communicated over the radio that " I'm in the clear and headed to Payne". The ATS did not teU the RWIC he was setting on at Payne and backing north. The ATS should have communicated with the smoothing gang about his trac k activity and location. Claimant radioed twice that he was heading to the clear. T he two vehicles collided with one another, travelling between 15 - 20 miles pe r h o ur about 1400 feet north of the crossing at M. P. 59. Three people were hospitalized and several thousands of dollars in damage was sustained by the two vehicles.
Cla im ant was charged with improper performance of duty in that he failed to stop the Ballast Regulato r within half the range of vision and failu re to maintain a vigilant loo kout.
Althoug h the Board determines that the Assistant Track Supervisor, by not communi cating his intentions, location and track activity, was largely re spo ns ible for this coUis io n, it cannot be said that Claimant was not responsible for some contributory negligence. Claimant admitted that he was turned around loo king in the opposite direction of travel for five (5) seco nds immediately p receding the collision and never saw the hi-rail vehicle coming. Moreover, Claimant was unable to bring the Ballast Regulator to a stop within half his range of vision. Under the particular circumstances of this dispute, the Board determines that Claimant's suspension was excessive considering the division of
resp onsibility and shaU b e reduced to ten (10) days. Claimant is to be made whole in all ways for time out of service in excess of ten CI0) days suspen sion. Claimant's Roadway
Machine O perator and DPG Machine O perator se niorities shall be restored immediately.
Sp1.:c1al Hoard of ,\ d jusrmcllt J\:o. 1048
,\ ward 1':o. 225
\W,\RD:
C:bim su:;t:1incd in :\econ.lance with the findinh"l>- Carrier 1s directed to m.'lke th b- 1\ w:ud l·ffrcri\'c within thirry days followin the· date th:ir two mcmlxr.. of rh,s limr<l affix thc.:ir sign:lfurcs thereto.
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R1ch:m l 1'. Hanft, Ch:iinn:m
I) . t\l. Pa carclla. Emplurcc k in hc r
lh tc:. J at C:h1c.:ago. lllinlli,; h.:bruary 12. 201K
D. I _ Kerby, C micr Member