SPECIAL BOARD OF ADJUSTMENT NO. 956
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYEES )
and ) AWARD NO. 155
CASE NO. 155
NEW JERSEY TRANSIT RAIL )
OPERATIONS, INC. )
STATEMENT OF CLAIM:
Claim on behalf of R. Canales-Molina, Class H Operator, for expungement 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.
Claimant has a seniority date of June 8, 2004. The instant claim was
precipitated as a result of the determination by the Carrier that Claimant was guilty
of the following charges:
On October 30, 2007 at approximately 10:27 am, you were operating Knox
Kershaw Ballast Regulator BR-303 from West End Interlocking in Jersey
City to the Curtis Write Switch in Wood-Ridge NJ. You were following Self
Raising Tamper machine ME-703 in a west direction through Laurel
Interlocking. Approximately 200 feet west of the interlocking, Class I
Operator Jason Cartwright stopped the ME-703 on an out-of-service track
per the instructions of Track Foreman James Buccine at the direction of the
Main Line Train Dispatcher. You were not wearing your seat belt as
required; you failed to stop your equipment as required, causing you to
collide into the ME-703 and causing personal injury to yourself, Foreman
James Buccine and Operator Jason Cartwright, and caused approximately
$47,500 worth of combined damage to the track equipment.
The Board has carefully reviewed the transcript of the hearing held on
November 19, 2007. It is readily apparent that there is substantial evidence in the
record to support the charges directed against the Claimant. As the Carrier
correctly contends, the Claimant was negligent while operating the Ballast
SBA No. 956 Award No. 155
Page Z Case No. 155
Regulator in that he failed to keep that equipment at a safe distance behind the
Tamper and neglected to wear a seat belt.
Claimant stated that there were extenuating circumstances because he had
not received prior information that the Tamper ahead of him would be stopped.
However, the Claimant was governed by restricted speed when he came through an
interlocking and proceeded on an out of service track. He was required in
accordance with NORAC Rule 80 and Rule 813 to control his movement to permit
stopping within one half the range of vision short of railroad equipment ahead of
him. The record shows that the operating conditions on the date in question were
optimal and Claimant would have been able to see ahead of him for nearly one
thousand feet. Contrary to the Claimant's contentions, we find that there were no
extenuating factors to mitigate Claimant's role in the collision. It was his
responsibility to remain attentive and to travel at a safe distance to avoid colliding
with another machine, notwithstanding the lack of prior notice that a stop would be
necessary. He failed to do so.
This Board further rejects the Claimant's contention that the Ballast
Regulator was not in good working order. Although Claimant stated that the gears
"popped out" as he tried to brake to avoid a collision, the record shows that the tests
performed immediately after the incident demonstrated that there were no
mechanical deficiencies which would have affected the equipment so as to prevent
its safe operation. Moreover, in the thirty day period prior to this accident, none of
the Claimant's equipment reports identified any malfunctions associated with either
the transmission or the braking.
Concluding as we do that the Claimant's misconduct has been proven, and
that the collision was caused by operator error, we next turn our attention to the
reasonableness of the discipline imposed. Following the hearing, the Claimant was
issued a 45 day actual suspension. In addition, he was disqualified from all
maintenance of way machines and equipment for a period of two years. The
Organization asserts that, while the collision was unfortunate, the Claimant should
not bear sole responsibility for the incident. The Organization argues that the
foreman in charge of moving the machines was equally culpable and yet he was
allowed to sign a waiver with discipline far less severe than that issued to the
Claimant.
We have considered the Organization's arguments but find that they are
without merit. The Claimant was primarily responsible for the collision and the
discipline was commensurate with the seriousness of his misconduct. As a result of
the Claimant's failure to maintain a safe stopping distance, three employees were
injured and both vehicles were damaged. In addition, we note that this was the
SBA No. 956
Page 3
Award No. 155
Case No. 155
Claimant's third accident within his relatively short tenure with the Carrier. Under
the circumstances, the discipline imposed was not arbitrary, capricious or an
unreasonable exercise of the Carrier's discretion. Based on all these factors, we
must rule to deny the claim.
Claim denied.
ANN S. I£ENIS
Neutral Member
Ago Ago'es Duncan
Carrier Member
W' 'am Capik
Organization Member
Dated this/O!~ay of p 008.