NATIONAL MEDIATION BOARD

SPECIAL BOARD OF ADJUSTMENT N0. 925

Case/Award No. 150

On May 13, 1983 the Brotherhood of Maintenance of Way Employes (hereinafter the organization) and the Burlington Northern Railroad Company (hereinafter the 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. 925 (hereinafter the 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 from service. On September 28,' 1987 the parties expanded the jurisdiction of the Board to cover employees who claimed that they had been improperly suspended from service or censured by the Carrier.

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 Railway 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 chose 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

that employee waives any rights to the other appeal procedure.

The Agreement further establishes 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 investigation, the transcript of investigation, the notice of discipline and the disciplined employee's service record to the Referee. These documents constitute the record of proceedings and are to be reviewed by the Referee.

In the instant case, this Board has carefully reviewed each of the above-described documents prior to reaching findings of fact and conclusions. Under the terms of the Agreement the Referee, prior to rendering a final and binding decision, has the option to request the parties to furnish additional data: including argument, evidence, and awards.

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 the applicable provisions of 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.

Background Facts -_

Mr. James E. Ahlin, hereinafter the Claimant, entered the Carrier's service as a Sectionman on June 27, 1967. The Claimant was subsequently promoted to the position of Foreman and he was occupying the position of Truck Driver when he was censured by the Carrier on December 8, 1992.

The Claimant was censured as a result of an investigation which was held on November 24, 1992 at the Carrier's facility in Great Falls, Montana. At the investigation the Claimant was represented by the- Organization.-- The -Carrier censured the, Claimant based upon its findings that he had violated Rule 62 by his alleged failure to operate on-track equipment at a safe speed and prepare to stop, which alleged violation resulted in a collision between BNX Truck Crane 150073 and BN Hi-rail 5384 on November 9, 1992.

Findings and Opinion _

The Claimant, who considered himself to be a "flagman", was riding in the front of Truck Crane BNX 150073 on November 9, 1992 when that vehicle collided with BN Hi-rail 534 at approximately 11:05 a.m. in the vicinity of milepost 207.5. The truck crane was being operated by Machine Operator D.H. Mercer, the Hi-rail was being operated by Track Inspector J.F. Mayo and Track Inspector A.P. Ulsher was riding in the Hi-rail as a passenger.

The relevant evidence of record establishes that the truck crane, dragging a gondola with approximately eighty tons of scrap iron, was traveling west following a local freight; that the Hirail entered the track traveling east after the local freight had passed; that as the two vehicles came into each other's view around a curve in the vicinity of milepost 207, when they were approximately 300 feet apart, Mr. Mayo braked the Hi-rail and he and Mr. Ulsher "high-tailed from the Hi-rail"; that the Claimant, responding immediately, began to signal frantically to Mr. Mercer to stop the truck crane;- that Mr. Mercer immediately began applying the air brakes; that due to the wet condition of the track, caused by a rain/snow storm, the truck crane "slid" into the parked Hi-rail causing substantial damage to the Hi-rail but no damage to the truck crane; and that by his testimony the Claimant, after waving to Mr. Mercer "for his attention to stop" and observing "Butch" and "Frank" both jump from the Hi-rail, "closed by eyes because I didn't want to see, to watch the impact". The Claimant testified that he "didn't want to see what was hitting me"; that is understandable. There is no evidence in this record which establishes any culpability on the part of the Claimant. He acted promptly and properly when he observed an "obstruction" on the track. He was not in a position to do anything more than he did and therefore no discipline should have issued. The claim will be sustained.

Award: The claim is sustained. The Carrier is

directed to physically expunge any record of the above

discipline from the Claimant's Personal Record.

This Award was signed this 24th day of April,

1993.

Richard R. Kasher

Chairman and Neutral Member

Special Board of Adjustment No. 925