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SBA No. I I 12
BNSFBMWE
Case No. 48
Award No. 49
NATIONAL MEDIATION BOARD
SPECIAL BOARD OF ADJUSTMENT
BURLINGTON/NORTHERN/SANTA FE Claimant:
] Lyle R. Miller
AND
] CASE NO. 48
BROTHERHOOD OF MAINTENANCE ] AWARD NO. 49
OF WAY EMPLOYEES
I
On February 2, 2001 the Brotherhood of Maintenance of Way ?mployces
("Organization') and the Burlington Northern/Santa Fe ("Carrier") entertd 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 consi; is 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 d smissed or
suspended from the Carrier's service or who have been censured may choos: to appeal
their claims to this Board. The employee has a sixty (60) day period from tl a 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 anti:ipation of
receiving an expedited decision. An employee who is dismissed, suspended, or censured
may elect either option. However, upon such election that employee waives aty rights to
the other appeal procedure.
This Agreement further establishes 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
BNSFBMW E
Case No. 48
Award No. 49
These documents constitute the record of the proceedings and are to be revit wed 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 ad( uced 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 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, Lyle R. Miller, Machine Operator, was charged with the failure to be:
alert, attentive and to move at a speed which would allow stopping in one-half the range
of vision. He was also charged with the failure to maintain a safe braking distance
between his on-track equipment and other trains and engines, while operating
I
he
Stabilizer X86 - 000 40, resulting in a collision and subsequent extensive dam< ge to the
rear of the Twin C - NAM SLID -OSSA. Train C had came to a complete stop at or
near MP 211.6, Main Track 1 on the Sandhills Subdivision at approximately 1:130 hours
on Wednesday, March 27, 2002 when this collision occurred. A subsequent investigation
and hearing was held on April 23, 2002 in Grand Island, Nebraska. Based on this event,
the Claimant was suspended for thirty (30) days as it was alleged that he violatyd BNSF
Rules 1.1.2, 6.50 and 6.51.
These rules are as follows:
Rule 1.1.2
Alert and Attentive
Employee: must be careful to prevent injuring themselves x others.
They must be alert and attentive when performing their do ties and
plan their work to avoid injury.
Rule
. 0 Movement of On-Track Equipment
On-Track Equipment must move at a speed that will allow stopping
in '/= the range of vision short of:
Train
Engine.
Railroad car.
People or equipment fouling the track.
Stop signal.
Or
Dcrail, moveable point frog or switch lined improperly.
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SBA No. 1112
BNSFIBMWE
Case No. 48
Award No. 49
Rule 6. 1 Maintaining a Safe Braking Distance.
On-track equipment operators are responsible for maintaining a safe
braking distance between their on-track equipment and otl er ontrack equipment, trains and engines.
For purpose of this rule: activities.
Working mode while applied to on-track equipment stopped or
moving slowly in the performance of maintenance activities.
Traveling mode will apply to on-track equipment moving to and from
a work location or performing inspection activities.
On-track equipment operators must:
Insure that on-track equipment remains at least 300 feet IKhind a
train and engine while in working or traveling mode, except when it
has been determined by a job briefing that the train or enghte is
stopped and will not move.
It is the position of the Organization that the lack of radio communication i i the real
problem because the Claimant had no way of knowing that Train C had comet
3
a
complete stop, when he rear-ended it. The Organization contends that the Clai nant was
only traveling about 20 MPH and that he did "throttle down" when he went arc and the
blind curve. Moreover, the Organization points out that the speedometer and fie brakes
were inoperative at the impact of the collision. The Organization argues that the
Claimant was unfairly charged, as Foreman Casey and others were not similarly
disciplined for their contribution to this accident. Lastly, the Organization add; that the
Claimant has a perfect record, for approximately twenty-six (26) years. Thus, t re Board
should sustain the Claimant's appeal and expunge his record.
The Carrier rebuts the Organizations argument that the brakes were not inop srative, as
they were inspected by three (3) persons. Moreover, the Carrier points out that five (5) of
the six
(6)
axles have brakes on them and "all were working." In addition, the --arrier
asserts that the Claimant was going well "over 30" MPH when the collision oci:urred.
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SBA No. 1112
BNSF/BMW E
Casc Yo. 48
Award No. 49
The Carrier also notes that the detector, ten (10) miles away from the site of the collision,
recorded the Claimant traveling thirty-eight (38) or thirty-nine (39) MPH. Moreover, a
train re-enactment also substantiates the finding of the speed detector, solid ev dance, the
Carrier argues, revealing the presence of a "high-speed impact;" as the "facep ate was
pushed back".In addition, the "knuckle carrier" and "pin lifters" were also "kn tcked off."
Repairs are significant, the Carrier asserts, as the stabilizer will cost $23,559, l ac broom
($54,000) and the BNSF 88 26 ($6,100). The collective cost, the Carrier adds, is
383,659. Based on all the above, the Carrier requests that the Board deny this appeal
because Claimant violated the regulations, as cited.
After a careful review of the proceedings, the Board finds that the Claimant's
appeal must be denied for the following reasons. Evidence reveals that the Clt imant was
exceeding the speed limit when the collision with Train C occurred. Evidence further
reveals that the damage was extensive, the type of damage, which occurs only upon a
"high speed impact." Based on the above, the Board finds that Claimant was r
of
alert
and attentive as he failed to maintain a safe braking distance between his train, the
stabilizer, and Train C on March 17, 2002.
Although the lack of radio communication might have exacerbated the problem,
the Board finds that had the Claimant been traveling at a lower and cautionary speed that
this collision could have been averted Damages, which amounted to $83,659, are
significant. The Board finds that but for the Claimant's lack of attentiveness ar d
traveling at an excessive speed, this accident would not have occurred. Beside;, the
record reflects that the Claimant admitted that he only "throttled" down a little bit. The
gravity of this offense and his negligent behavior, the failure to be careful in th: presence
of a hidden curve end blind spot, constitutes egregious behavior. This behavior outweighs
the Claimant's past, exemplary work record. Accordingly, the Board finds tha the
Claimant violated the above-cited rules. Thus, his appeal must be denied.
Award
The Claimant's appeal is Denied.
His thirty (30) day- suspension stands.
C ~, 2
N traAChair SBA No. 1112 DA
AJ
Y. McKissick