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SBA
No. 1112
BNSFBMWE
Case No. 43
Award
No. 44
NATIONAL MEDIATION BOARD
SPECIAL BOARD OF ADJUSTMENT
BURLINGTON/NORTHERN/SANTA FE Claimant:
] Robert S. Martens
AND ]
1
] CASE NO. 43
BROTHERHOOD OF MAINTENANCE ] AWE NO. 44
OF WAY EMPLOYEES ]
]
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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SBA No. 1112
BNSFBMWE
Case No. 43
Award No. 44
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 substantiate 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 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, Robert S. Martens, Truck Driver, was charged with failure to be alert
and attentive. Claimant was also charged with failure to conduct job safety briefing that -
included identifying potential hazards and ways to eliminate or protect against hazards,
which resulted in the personal injury to Miller's right shoulder. The injury occurred on
Wednesday, November 21, 2001 at approximately 1115 hours at Newcastle, Wyoming
while Miller was descending the steps on the back of the section truck at or near MP
520.7 on the Black Hills Subdivision. Maintenance of Way Safety Rule S-1.2.3 states as
follows:
Assure that you are alert and attentive when performing duties.
Maintenance of Way Operating Rule 1.1.2 states as follows:
Employees must be careful to prevent injuring themselves or others.
They must be alert and attentive when performing their duties and
pan their work to avoid injury.
Maintenance of Way Safety Rule S-I.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
hazards, and ways to eliminate or protect against hazards. Outside
parties and contractors involve in the work or who are in the work
area must also be included in the job safety briefing.
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SBA No. 1112
BNSFBMWE
Case No. 43
Award No. 44
Based on the alleged violations, the Claimant was issued a Ten (10) Day Suspension. An
investigation was held on Wednesday, December 5, 2001 at Newcastle, Wyoming.
FINDINGS AND OPINION
It is the position of the Organization that the Claimant conducted three (3) job
briefings. The first briefing was in the morning to discuss the tasks. The second one,
when the rail was loaded. A third briefing occurred when the rail was unloaded. Thus, it
is the Organization's position that he fully complied by conducting job briefings before
performing new tasks and when working conditions changed. The Organization further
contends that the Claimant did not notice any mud until after Miller had injured himself.
Based on the above, the Organization requests that the Board sustain the Claimant's
appeal.
It is the position of the Carrier that the Claimant failed to warn the gang of muddy
areas, especially the walking conditions around the truck. The Carrier maintains that there .
were no design defects with the truck. However, the Carrier admits that the bottom step
has "tall grading" on the "edge of the step." In particular, the Carrier points out that
Miller descended the steps from the back of the truck into a very muddy area next to the
rail pile which caused his shoulder injury. In addition, the Carrier adds that the Foreman
also admitted that "an inch of snow" had recently fallen and "had melted." Based on all
of the above, the Carrier requests that the Board deny the Claimant's appeal.
After a careful review of the record, the Board finds that Claimant triggered a
chain of successive events into action, which resulted in the direct injury of Miller's
shoulder. Although he gave three job briefings, the Board also finds that the Claimant
omitted the salient details as he omitted to specify "potential hazards" such as: muddy
conditions on the ground, in the immediate vicinity of the truck. Had the Claimant not
parked the truck next to the rail pile, it might have prevented Miller's injury and his
descent into the muddy area on the passenger's side. The Board finds that the Claimant's
positioning of the truck coupled with his omission to specifically warn of "potential
hazards," the muddy conditions present at the situs, brought about the above described
injury. Thus, the Board finds that the Claimant violated Rule S-1.2.3, Rule 1.1.2 and Rule
S-1.1. Based on all the above, the Board is compelled to deny the Claimants' appeal.
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SBA No. 1112
BNSFBMWE
Case No. 43
Award No. 44
AWARD
The Ten (10) Day Suspension is affirmed. Accordingly,
this appeal is denied for the aforementioned reasons.
W&SS3
dA.Y.McI(issick Dated: March 11, 2002
Neutral Chair
SBA No. 1112
C:(NMB)ISANTA FE CASES