Pop I of4
 SBA No. 1112
 BNSFBMWE
 Case No. 46
 Awed No. 47
 NATIONAL MEDIATION BOARD
 SPECIAL BOARD OF ADJUSTMENT

 BURLINGTON/NORTHERN/SANTA FE



AND
 CASE NO. 46
 BROTHERHOOD OF MAINTENANCE ] AWARD NO. 47
 OF WAY EMPLOYEES ]
 1

On February 2, 2001 the Brotherhood of Maintenance of Way Employees ("Organization'") and the Burlington Northem/Santa Fe ("Carrier') enter:d into an Agreement establishing a Special Board of Adjustment in accordance with th( provisions of the Railway Labor Act. The Agreement was docketed by the National Mediation Board as Special Board of Adjustment No. 1112 ("Board'7.


This Agreement contains certain relatively unique provisions con(eming 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. Effective from the date of the discipline, the emplayce has a sixty (60) day period to elect to handle one's appeal through the usual channels (Schedule Rule 40) or to submit the appeal directly to this Board in anticipation of re--eiving an expedited decision. An employee who is dismissed, suspended, or censured may elect either option. However, upon such election that employee waives any rights t r 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 transmi : 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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These documents constitute the record of the proceedings and an: 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 wtether there was compliance with Schedule Rule 40; whether substantial evidence was adduced at the investigation to substantiate the charges made; and, whether the discipline as sessed was arbitrary and/or excessive, if it is determined that the Carrier has met its burde 1 of proof .


In the instant case, this Board has carefully reviewed each of the abov. -captioned documents prior to reaching findings of fact and conclusions.


BACKGROUND FACTS

Claimant, S.F. Lawler, a Relief Track Inspector, was charged with a to L (10) - day record suspension and a one (1) - year probation for his alleged failure to detect, correct and protect variations from BNSF track standards. He was also charge I with failure to ensure safe train operations at authorized speeds at or near MP 58.17 on Main Track #1 on the Orin Subdivision, headquartered at Wright, Wyoming. This it cident was discovered on Tuesday, February 5, 2002. Subsequently, an investigation and searing

was held on March 27, 2002 at 107 N. Gillette Ave. in Gillette, Wyoming.

Applicable rules, Maintenance of Way Engineering Items Part A. Road masters and Track Inspectors, Part B. Track Inspectors and Table 2-l Inspection Items .o consider are as follows:

        Part A #3

        Perform a close visual inspection of rail during track inspections. Note the general condition of track, roadbed, and right-of-way to determine the required maintenance

        and to schedule annual work programs.


        Part # Inspect for the specific items and conditions in Table 2-1. Table 2-1. Item Inspected/Raf- specific Items and Conditions Broken, vertical or horizontal split heads, crushed head, corrugation, wear, shelling, engine burns, rail-end batter, discoloration, rust streaks, damaged by equipment, running, crushed welds (See Section 6.63 [Defect Descriptions].)

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 SBA No. 1112
 BRIW/HMWE
 Case No. 46
 Awud No. 47
        Track inspection has two basic purposes:

            · First, it allows employees to detect, correct, and protect variations from BPISF track standards and to ensure safe train operations at authorized speeds.

            · Second, it allows a planned program of repairs and improvements to ensure that employees are productive and use materials efficiently.


        Perform at least the minimum track inspections required

          in this section.


        Item 2.4.4

        Track Inspectors and Track Supervisors have the following

          safety responsibilities during inspections:


          1. Be aware of train movement on or near the tracks being inspected. Comply with operating rules and use common sense.

          2. If you detect unsafe conditions or deviations that exceed tile allowable limits, initiate corrective or remedial action. Analyze irregular smfaee and/or alignment conditions by recording measurements on the Track Supervisor's Track Measurement Notes (see Figure 2-7). Carry the proper tools to handle routine track deviations that may be found during the inspection.

            3. If you cannot correct the conditions, immediately protect the safety of the railroad.

          4. Properly inspect, maintain, and care for your vehicle.


It is the position of the Carrier that the discovery of a corrugated nail with joints in the location and a missing bolt is a very serious defect. This twenty-two (22) foot gap was visible to the naked eye and could have caused a train derailment The Carrier points out that this type of condition did not happen overnight The Carrier contends that such a situation took a period of time to develop and that the omission to discover it lies within the responsibilities of the Track Inspector. In particular, the Carrier asserts a monthly, visual walking inspection would have detected such a defect Moreover, the Carrier notes that the Claimant should have discovered the defect and taken corrective action, as the rules require. Lastly, the Carrier adds that the Claimant's failure to comply with said regulations is a violation of the prevailing Engineering Instructions, Item 2.4.4. Thus, the Carrier concludes that his appeal should be denied and his suspension should stand
 Page 4 of4 SBA No. 1112 BNSFBMWE Cm No. 46 Award No. 47

 The Organization rebuts that Claimant was only the "Relief' Track In ipector, not the primary Track Inspector. Therefore, the Organization argues that the omi ision to discover the defect does not mean that the Claimant is culpable. The Organization further asserts that the omission to discover could have been another person, lamely the "Track Inspector", whose primary responsibility was to have regular visual inspections. The organization further points out that the Claimant "only relieves" the "Track Inspector" when he's on vacation and on his days off. In addition, the Claimant contends that he performed both a: "walking" inspection on January 29, 2000 and a "vi ;ual" inspection by "hi-rail" on February 4, 2002. Moreover, the Organization add., that this type of defect does not require the imposition of a "10 MPH slow order", as tt.e Carrier contends. Based on all the above, the Organization asserts that the Claimant complied with the prevailing regulations to the best of his determination. Lastly, the Organization adds that the Claimant has been with the Carrier for more than twenty (20) yaws and has a good solid record. Therefore, the Organization maintains that the charges ate not supported by a preponderance of evidence as required. Thus, the Claimant's 2 ppeal should be sustained.

 Based on all evidence, the Board finds that the Claimant's appeal shou'd be sustained for the following reasons. The testimony of Foreman Alieman was most revealing, as he has more than thirty (30) years with the Railroad. In sum, his testimony reveals that a "crushed head" and/or the presence of "corrugation" are not con::idered serious defects. When asked about the appropriateness of a "slow order", his response was when "it[corrugated rail] is starting to elongate". More importantly, Foreman Alleman's testimony corroborates the testimony of the Claimant and two others (Danesha and Hill), both Supervisors at Herzog. All determined that the corrugated rail, at issue, was not defective. Based on this collective expertise testimony, the Board finds that there was no mentioning of the presence of "elongation" throughout the transcript. " he Board also finds that the Claimant did comply with the prevailing, aforementioned operating rules, as required. Lastly, the Claimant had been with the Carrier for more that twenty (20) years and has maintained a good work record with only one prior infraction. Based on the composite of information arid testimonies, the ten (10) - day suspension with oneyear probation is vacated.

                      AWARD


              TLe Claimant's appeal is sustained.


      ,IC, S $

      eferee TE

Neu Chair SBA No. 1112