SPECIAL BOARD OF ADJUSTMENT N0.925
BURLINGTON NORTHERN RAILROAD COMPANY
* CASE NO. 45
- and -
* AWARD NO. 45
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
*
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 -jurisd-iction 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 censured---may elect either
option. However, upon such election 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. Roy Matheu King,--hereinafter the Claimant, entered the
Carrier's service as a Tie Gang Laborer on July 8, 1970. He was
subsequently promoted to the--position --of -Section Foreman and he was
occupying that position when he was issued a five (5) day suspension
from service effective November 18, 1987. The Claimant was suspended
as a result of an investigation which was held on October 22, 1987 in
the Trainmaster's Office in Staples, Minnesota. At the investigation
the Claimant was represented by the Organization. The Carrier
suspended the Claimant based upon its findings that he had violated
Rules 9E and 908. Specifically the Claimant was suspended for his
alleged responsibility in the derailment of and the damage to
Undercutter BNX 80-0015, a push car, Tie Crane BNX 60-0116 and STM
Tamper BNX 56-0156 on the House Track at Hawley, Minnesota on
September 28, 1987.
SBA No. 925
BN & BMWE
Case/Award 45
Page 3
Findings and Opinion
On Tuesday morning, September 29, 1987, Trainmaster W.J.
Thompson was notified that a tamper, a tie crane, a push car and an
undercutter had been found damaged on the House Track in Hawley,
Minnesota. He investigated the incident and found that the
equipment, which had been derailed and smashed together, had been-
shoved west by approximately 113 feet He also found two (2) red
flags on the tracks in flattened down and bent over condition.
On the previous evening, the claimant was the Foreman in charge
of a gang of machine operators. Mr. R.R. Bertram, was in charge of
operating the undercutter, Mr. J.R. Varholdt, a Sectionman, was in
charge of the tie crane, Mr. J.L. Aiton was in charge of operating a
diesel electric crane and Mr. M.D. Maloney was in charge of operating
the tamper.
Trainmaster Thompson obtained the following written statement
from the Claimant
Finished undercutting eastbound track at 19:20,
went to crossover switch at Hawley at 19:30,
waited for Train #4- to- 'go by on westward track.
Got in the yard at 19:40, J. Aiton switched
diesel electric crane around to east end of
machines. Picked up flags west end of main line
while J. Varholdt put up red flag on west end of
machines and J. Aiton put up red flag at east
end of machines. All flags put up and machines
turned off at 20:10. Taken tamper operator N.
Maloney to -lake Park. Left Lake Park at 20:25
and went to Hawley. Parked truck, got out,
passed person walking by track, said Hi. He
said how's it going. I said fine, done with
undercutting going home. Put keys in depot and
left about 20:40 or 20:45. Got to SA Gas
Station to fill up car and called Fargo Com. to
take track out of service at Hawley about House
Track at 20:55."
The Claimant's testimony at the investigation, while- it
contained more details than the above-quoted written statement, was
confirmatory regarding the tie-down and red-flagging procedures he
and his gang performed on the evening of September 28, 1987. Gang
members J. Varholdt and and N. Maloney testified that after tieing
down their equipment on the House Track at Hawley that they set red
flags on the west and east ends of the maintenance of way equipment.
Based upon the examination of the Claimant, and other witnesses
SBA No. 925
BN & BMWE
Case/Award 45
Page 4
in the investigation (including the train crew of Local 31615, whose
train arrived at Hawley at approximately 8:06 p.m. to do local
switching, and whose members acknowledged that they "made a joint"
with or "coupled into" the crane on the House Track), it appears that
the carrier does not find the Claimant guilty of any rules
infractions regarding the red-flagging and tie-down procedures which
he and his crew performed on the evening in question.
The carrier cited the Claimant for violation of Rule 9(E),
which requires obtaining a copy of the train order, track- bulletin or
track warrant when a track is being taken out of service. The
Claimant conceded that when he sent the wire requesting that the
involved track be taken out of service, he did not ask the Dispatcher
for a copy of the track bulletin or track warrant, nor did he wait to_
receive such warrant or bulletin if one was going to be sent. The
Claimant testified that at Hawley, supervision did not require
Maintenance of Way foremen to obtain such documentation.
The Claimant was also cited for violation of Rule 908, which
provides that "Occupied outfit cars and on-track equipment, when set
out, should be protected by a train order or by spiking the--switch oftrack involved". The Claimant acknowledged that he did not have the
switch spiked, and stated that he did not do so because of the
possibility that "a local would come in sometime during the night to
switch".
In defense of these apparent derelictions, the Claimant
testified as follows in response to questions from Conducting Officer
G.D. Anderson:
Q. How long have you been working as a Foreman
on the Minnesota 1st Subdivision?
A. On and off probably two years to two and
one-half years.
Q. During that time did you have occasion to
tie up track machinery and track equipment
on tracks other than a siding or a main
track?
A. Yes.
Q. Each time you tied up track machines, did
you spike the switch?
A. At Hawley there or other places?
Q. Other places?
A. At times if we can yes, most places we do,
but at Hawley we don't.
SBA No. 925
BN & BMWE
Case/Award 45
Page 5
Q. At other places and other times did you ask
for track warrants, train order or track
bulletins on the machines?
A. No I never have." (Transcript pg. 22)
While the Claimant's defenses that he did not await the receipt
of a train order, train bulletin or track warrant taking the track
out of service and he did not spike the switch at the west end of the
track because such procedures were not required at Hawley appeared to
be without foundation, at least through the first 135 pages of the
transcript, those defenses gained some measure of credibility as a
result of the following colloquy between Organization Representative
B.G. Glover and Roadmaster Ray Romano:
Q. Mr. Glover, do you have anyone you wish to
question at this time?
A. Yes, I would like to call Roadmaster Ray
Romano.
Q. Mr. Romano you have been present today at
this investigation and you have heard the
manner in which the Maintenance of Way
employees protected the on-track equipment
at Hawley, Minnesota. Would protection for
that equipment been consistent with your
understanding for the protection necessary
for on-track equipment at Hawley,
Minnesota?
Q. Would you have advised that crew to spike
those switches?
A. No." (transcript pg. 136)
There was no further testimony elicited from Roadmaster Romano
regarding the spiking of switches or any other procedures regarding
how tracks were to be taken out of service at Hawley, Minnesota.
Accordingly, this Board is left with significant doubt as to
whether the Claimant was, in fact, derelict in terms of how he
secured the House Track at Hawley on the evening in question.
Because of this doubt, we must conclude that the Carrier has
failed to present substantial and convincing evidence to support
imposing discipline upon the Claimant. Therefore, the claim will be
sustained.
Award: The claim is sustained. The carrier is directed
to expunge the suspension from the Claimant's
Personal Record, and to make him whole for any
lost wages or benefits he suffered. This Award
was signed this 30th day of January 1988 in Bryn
Mawr, Pennsylvania.
Richard R hasher
Chairman and Neutral Member
Special Board of Adjustment No. 925