NATIONAL MEDIATION BOARD
SPECIAL BOARD OF ADJUSTMENT NO. 1112
BURLINGTON NORTHERN SANTA FE
AN D
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
CASE NO. 106
AWARD NO. 107
CLAIMANT: J. M. NYBERG
On July 29, 1998, the Brotherhood of Maintenance of Way Employes ("Organization°)
and the Burlington Northern Santa Fe ("Carrier") entered into an Agreement establishing a
Special Board of Adjustment in accordance with the provisions of the Railway Labor Act. The
Agreement was docketed by the National Mediation Board as Special Board of Adjustment No.
1112 ("Board").
'this Agreement contains certain relatively unique provisions concerning the processing
of claims and grievances under Section 3 of the Railway Labor Act. The Board's jurisdiction
was limited to disciplinary disputes involving employees dismissed, suspended, or censured by
the Carrier. Moreover, although the Board consists of three members, a Carrier Member, an
Organization Member, and a Neutral Referee, awards of the Board only contain the signature of
the Referee and they are final and biding in accordance with provisions of Section 3 of the
Railway Labor Act.
Employees in the Nlaintenance of Way craft or class who have been dismissed or
suspended from the Carrier's service or who have been censured may choose to appeal their
claims to this Board. The employee has a sixty (60) day period from the effective date of the
discipline to elect to handle his/her appeal through the usual channels (Schedule Rule 40) or to
submit the appeal directly to this Board in anticipation of receiving an expedited decision. An
employee who is dismissed, suspended, or censured may elect either option. However, upon such
election that employee waives any rights to the other appeal procedure.
This Agreement further established that within thirty (30) days after a disciplined
employee notifies the Carrier Member of the Board, in writing, of his/her desire for expedited
handling of his/her appeal, the Carrier Member shall arrange to transmit one copy
of
the notice
of the investigation, the transcript
of
the investigation, the notice
of
discipline and the disciplined
employee's service record to the Referee. These documents constitute the record
of
the
proceedings and are to be reviewed by the Referee.
The Agreement further provides that the Referee, in deciding whether the discipline
assessed should be upheld, modified, or set aside, will determine whether there was compliance
with Schedule Rule 40; whether substantial evidence was adduced at the investigation to prove
the charges made; and, whether the discipline assessed was arbitrary and/or excessive, if it is
determined that the Carrier has met its burden of proof in terms of guilt.
I
S.B.A.1112
Case 106
Award 107
In the instant case, this Board has carefully reviewed each of the above-captioned
documents prior to reaching findings of fact and conclusions.
The Carrier hired Claimant John M. Nyberg on or about June 8, 1971 as a Trackman.
At the time of the incidents leading to the instant Discipline, Grievant was working Section F
Maintenance in Cass Lake, Minnesota. Claimant had previously received the following
disciplines:
DATE OFFENSE DISCIPLINE
_ _ ASSESSED
_9/6/76 _ Failure to tom ly with Instructions 5-d-Suspension__
12/10/87 Failure to Comply with Instructions Censure
On October 4, 2007, Claimant was working with Russell Lembke on the Grand Forks
Subdivision near Wilton, Minnesota. They were dispatched to change a frog on the railway.
When they reached their destination, Claimant and Lembke determined that they had the wrong
frog and could not perform the change. After a discussion with their Roadmaster, it was
determined that they would switch out the frog with a piece of track. During the course of
changing out the track, the piece of track dislodged and struck Claimant, resulting in a broken
leg. This accident led to the instant investigation.
By letter dated October 8, 2007, the Carrier notified Claimant that he was to attend a
formal Investigation at the Roadmaster's Office in Grand Rapids, Minnesota "...for the purpose
of ascertaining the facts and determining you responsibility, if any, in connection with your
alleged involvement in a rail change out accident at or near MP 84.1 on October 4, 2007, at
approximately 0930 hours on the Grand Forks Subdivision near Wilton, Minnesota, that
resulted in serious injury to a BNSF employee." After a number of postponements, the Hearing
took place on January 4, 2008. Pursuant to that Investigation, on January 29, 2008, Claimant
was notified that he was being disciplined and was issued a Level S Record Suspension of thirty
days and a 1-year Probation on the BNSF Railway for violating Maintenance of Way Operating
Rule 1_1.2, "Alert and Attentive". By notice dated February 19, 2008, Claimant exercised his
right to appeal the decision to Special Board of Adjustment 1112.
According to the Organization, the discipline imposed upon Claimant was harsh and
excessive. The Organization contends that the burden of proof in a discipline matter such as this
is on the Carrier; that burden of proof has not been met. The Organization claims that the
Carrier has abused its discretion and that the Carrier's determination to discipline Claimant
was based on inconclusive evidence. The Organization claims that Claimant has not received a
fair and impartial Investigation. The Organization claims that the Discipline imposed upon
Claimant was improper. Claimant has along history with the Carrier and has performed
similar work numerous times without incident. In this case, when Claimant and his co-worker
arrived at the scene of the change out and discovered that they had the wrong frog, the
Roadmaster approved their plan to change out the frog with a piece of track; there was no
negligence on the part of Claimant or his co-worker. The Organization asserts that the Carrier
should now be required to overturn Claimant's Discipline and make Claimant whole for all
losses. Conversely, the Carrier takes the position that it has met its burden of proof. Claimant
was afforded a fair and impartial Hearing in accordance with the requirements of the
2
S.B.A.1112
Case 106
Award 107
Agreement. According to the Carrier, Claimant was guilty as charged
of
violating the Carrier's
safety policy. While it may be true that Claimant did have the permission
of
the Roadmaster,
Claimant and his co-worker were nonetheless responsible for the event that occurred. Based on
Claimant's offense, the Discipline imposed was appropriate.
In discipline cases before this Special Board of Adjustment, the Board sits as an appellate
forum. We do not weigh the evidence de novo. As such, our function is limited to the question of
whether the discipline assessed should be upheld,
modified, or
set aside. This Board must
determine whether there was compliance with Schedule Rule .f0; whether substantial evidence
was adduced at the investigation to prove the charges made; and, whether the discipline assessed
was arbitrary and/or excessive, if it is determined that the Carrier has met its burden of proof in
terms of guilt.
This Board has not found substantial evidence in the record to sustain the Carrier's
position.
A
review of the incident yields the conclusion that Claimant acted appropriately on the
day in question. He and his co-worker, after receiving permission from their Roadmaster, were
attempting to resolve a problem; the accident that followed could not have been reasonably
anticipated. This Board cannot find that the accident was the fault of Claimant. Based on this
conclusion, this Board has determined that Claimant did not violate Maintenance of Way
Operating Rule 1.1.2, "Alert and Attentive".
Claim sustained.
3
S.B.A.1112
Case 106
Award 107
AWARD
Claim sustained.
teven M. Bier ig
Ch ~Fperson and Neutral Member
S.B.A.1112
Dated
/ 4
~-,2
0;)
4