SPECIAL BOARD OF ADJUSTMENT NO. 956
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYEES )
and ) AWARD NO. 151
CASE NO. 151
NEW JERSEY TRANSIT RAIL )
OPERATIONS, INC. )
STATEMENT OF CLAIM:
Claim on behalf of M. Radocesky, Class H Operator, for ezpungement of discipline
assessed, payment for all time lost, and reimbursement for benefits lost during time
withheld from service.
FINDINGS:
Special Board of Adjustment No. 956, upon the whole record and all the
evidence, finds that the parties herein are Carrier and Employes within the meaning
of the Railway Labor Act; as amended; that the Board has jurisdiction over the
dispute herein; and that the parties to the dispute were given due notice of the
hearing and. did participate therein.
By notice dated November 25, 2003, Claimant was advised to attend a
hearing in connection with the following charges:
On November 19, 2003, at approximately 3:30 a.m. on the Montclair Line at
MP 18.2 in Little Falls, NJ, you were operating a piece of on-track
production equipment as part of the Capital Tie Gang which was traveling
westward toward Dover. After crossing Lindsley Road crossing on the
Montclair Line, you operated your machine in a manner that prevented you
from stopping safely, causing you to collide into the track machine in front of
you. Nine other track machines ahead of and behind you were involved in
this collision which resulted in significant and costly damage to several track
machines.
A joint hearing was held on December 23, 2003, at which all five of the
equipment operators charged in the November 19, 2003 collision were present, as
was their Organization representative. Following the hearing, the Carrier
determined that the Claimant was guilty of the charges. Claimant was issued a fxveday suspension.
SBA No. 956 Award No. 151
Page 2 Case No. 151
The Organization does not dispute the fact that a collision occurred at the
time and place set forth in the charge notice. Instead, it contends that there were
several mitigating circumstances which should have been taken into consideration
before assessing discipline.
The Organization points out that the crew was working late at night on
overtime to remove leaves from the tracks to assist the movement of passenger
trains. The tracks at the site of the collision were on a curve and a downgrade and
they were slippery that evening. Not all the 17 machines operating over the tracks
had brake lights. In addition to the lack of visibility, the lead machine did not have a
radio, and therefore the operators had no prior warning that machines ahead of
them had derailed. The Organization further points out that there was a crossing
600 feet from the incident and the Claimant had stopped at that crossing before
proceeding. There is no evidence that he was speeding and in fact he was not
charged with operating the equipment at an excessive speed.
Moreover, the Organization contends that the Claimant was struck from
behind and was pushed into the equipment ahead of him. Claimant Radocesky
testified at hearing that he was slowing down when he was hit by the tamper
machine behind him, pushing him into the equipment ahead of him on the tracks.
Claimant maintains that the accident was unavoidable.
In the Organization's view, Claimant's testimony, together with all the
extenuating factors involved in this collision, demonstrate that the discipline was
excessive. Based on all the foregoing, the claim must be sustained in its entirety.
Carrier contends that the charges were proven and the discipline was
warranted based on the evidence adduced at the hearing. Carrier notes that there 17
machines on the tracks on the night of the collision. Twelve employees managed to
stop without incident. The Carrier argues that the five employees charged in
connection with the accident were responsible for their vehicles and it is clear that
they were inattentive to safety. Carrier rejects the Organization's assertion that
mitigating circumstances should reduce the penalty imposed. On the contrary, the
Carrier asserts that the operating conditions should have alerted the Claimant to
exercise greater caution. As an experienced operator, he knew or reasonably should
have known that greater care should have been exercised based on the operating
conditions at the time. The claim, therefore must be denied.
The Board has reviewed the record thoroughly. We find that the Claimant
was afforded a fair and impartial investigation and that there were no procedural or
due process defects in the handling of the case.
SBA No. 956 Award No. 151
Page 3 Case No. 151
On the merits, the Board is satisfied that substantial evidence exists in the
record to support the finding that the charges directed against the Claimant were
proven. Under the circumstances, and considering the conditions that existed, we
cannot find fault with the Carrier's conclusion that Claimant failed to operate his
equipment in a safe manner. The Claimant knew that there was another vehicle
ahead of him on the tracks. He was on a slippery track where there was a curve and
a downgrade, and visibility was extremely poor due to darkness. As Carrier witness
Acconzo correctly stated at hearing, the Claimant should have been prepared to
stop short of any obstruction that was ahead of him in light of these operating
conditions. He failed to do so.
The remaining question is whether the imposition of a five-day suspension
was fair and reasonable. With regard to Claimant Radocesky, we find that there
were mitigating circumstances which serve to lessen his culpability in connection
with this collision. Claimant's equipment was struck from behind and this caused
his forward movement into the equipment ahead of him. The Board finds that the .
penalty should be reduced in light of those circumstances. Accordingly, the five-day
suspension shall be converted to a five-day deferred suspension, to remain on the
Claimant's record for a period of two years.
AWARD
Claim sustained in accordance with the Findings.
,r 7
ANN S. KENIS
Neutral Member
r
J
Ca "er Member
Agnes Duncan William Capik
Dated this /' day of ~O,("2008.
