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SBA No. 1112
BNSFBMWE
Case No. 40
Award No. 41
NATIONAL MEDIATION BOARD
SPECIAL BOARD OF ADJUSTMENT
BURLINGTONINORTHERN/SANTA FE ]
] Claimant:
] Thomas R Miller
AND ]
1
] CASE NO. 40
BROTHERHOOD OF MAINTENANCE ] AWE NO. 41
OF WAY EMPLOYEES ]
1
On February 2, 2001 the Brotherhood of Maintenance of Way Employees
("Organization") and the Burlington Northem/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 Railroad 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 binding in
accordance with the provisions of Section 3 of the Railroad Labor Act.
Employees in the Maintenance 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 one's desire for
expedited handling of this 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.
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Case No. 40
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These documents constitute the record of the proceedings and are to be reviewed b_% 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 substantiate the charges made; and, whether the discipline assessed %% as
arbitrary and/or excessive, if it is determined that the Carrier has met its burden of proof .
In the instant case, this Board has carefully reviewed each of the above-captioned
documents prior to reaching findings of fact and conclusions.
BACKGROUND FACTS
Claimant, Thomas R. Miller, Sectionman, for Burlington Northern Santa Fe
Railroad was charged with his alleged failure to be alert and attentive and his alleged
failure to conduct a job safety briefing before performing new tasks and when working
conditions change. These alleged failures occurred on Wednesday November 21, 2001 at
approximately 1115 hours, at the Section House located in Newcastle Wyoming, which
resulted in the personal injury of the Claimant's right shoulder while descending the steps
on the back of a section truck, at or near MP 520.7, on the Black Hills Subdivision. An
investigation of said events occurred December 5, 2001 in the Roadmaster's office in
Newcastle, Wyoming at 100 S. Railway Ave. of the following rules:
Safety Rule S-1.2.3 Alert and Attentive:
Assure that you are alert and attentive when performing duties.
Maintenance of Way Operating Rule 1.1.2, Alert and Attentive:
Employees must be careful to prevent injuring themselves or others.
They must be alert and attentive when performing their duties and
plan their work to avoid injury.
Maintenance of Way Safety Rule S-1.1, Job Safety Briefing:
Employees must participate in a job safety briefing before beginning
work and when work and job conditions change. The briefing
includes a discussion of the general work plan, existing or potential
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Case No. 40
Award No. 41
hazards, and ways to eliminate or protect against hazards. Outside
parties and contractors involved in the work or who are in the work
area must also be included in the job safety briefing.
Maintenance of Way Operating Rule 1.1, Job Safety Briefing:
Job Safety Briefing
Conduct a safety briefing with individuals involved before beginning
work, before performing new tasks. When working conditions change,
the job safety briefing must include the type of authority or protection
in effect.
FINDINGS AND OPINION
The Organization asserts that this is the first non-serious incident for the Claimant
who has been with the railroad for more that twenty-four (24) years, with an impeccable
work record. Thus, the Organization reasons that this type of case is appropriate for the
"Safety Incident Analysis Process" (SUP), which includes: coaching, counseling and
training. That is, the Organization asserts that alternative handling is designed for an
employee who has never been disciplined and with a long-work record as this Claimant,
not a disciplinary proceeding. The Organization contends that this type of injury could
not be prevented. The Organization points out that it was the design of the last step which
was indented, narrow and out of line with the other steps. Specifically, the Organization
notes that it was not the mud that caused the accident and subsequent injury to the
Claimant. Lastly, the Organization maintains that the Claimant was not warned of the
presence of slippery conditions. Therefore, the Organization urges the Board to sustain
this appeal.
The Carrier rebuts that this incident required a full investigation and all the
questions could not be fully answered by such a cursory process. The Carrier counters
that it had snowed earlier and the Claimant should have realized that it would be muddy
and thus slippery. Thus, the Carrier argues that it should logically follow that, had the
Claimant been alert and attentive when descending, he could have prevented his injury.
Moreover, the Carrier adds more frequent briefings should have warned the Claimant of
the changing working conditions. Based on all the above, the Carrier urges the Board to
deny this appeal.
After a careful review of the record, the Board finds that the Claimant was
attentive and alert and that it would appear from the record that his subsequent injuries
could not have been prevented. The Board is also persuaded that the appropriate forum
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Case No. 40
Award No. 41
should have been SIAP because this Claimant is a veteran employee, without a
disciplinary record. It is significant to note that both the Claimant and the Foreman
corroborated that it was the unique design of the bottom, indented step that caused this
accident. Both also agreed that the presence of mud was not a contributing factor to the
Claimant's injury. The Board concurs with this assessment of events. Lastly, the record
reflects that the Claimant used appropriate protective gear and was warned to be careful
of his footing. Based on all of the above, the Board finds that this appeal should be
sustained.
AWARD
This ten (10) day suspension shall be set aside and his
record should be expunged. Accordingly, this claim is
sustained.
.
V
11
if
McKissick Dated: February 19, 2002
eutral Chair
C:(NMB)\SANTA FE CASES