JEFFREY BECK 9/62013 Page I UNITED STATES DISTRICT COURT 1 WESTERN DISTRICT OF WASHINGTO'T AT SEATTLE 2 3 JEANETTE WALLIS, Plaintiff, NO. 2:13-CV-00040-TSZ ) Judge Thomas S. Zilly V. r:) BNSF RAILWAY COMPANY, Defendant. 6 7 S 9 10 * * * * * * * * * * * * * * * * * * * * * * * * * 11 ORAL AND VIDEOTAPED DEPOSITION OF JEFFREY BECK 12 * * * * * * * * * * * * * * * * * * * * * * * * * 13 14 15 16 ORAL AND VIDEOTAPED DEPOSITION OF JEFFREY BECK, being 17 18 produced as a witness at the instance of the Plaintiff, taken 19 in the above-styled and numbered cause on the 6th day of 20 September, 2013, from 10:08 a.m. to 1:55 p.m., before Rhonda 21 Mears, Certified Shorthand Reporter in and for the State of 22 Texas, by machine shorthand, at the offices of Prosperity 23 Video, 777 Main Street, Suite 600, Fort Worth, Texas, in 24 accordance with the Federal Rules of Civil Procedure and the 25 agreements hereinafter set forth: Corporal ion 877-489-0367 nierrilkorp.cotn !;i JEFFREY BECK 9/6/2013 Pac 4 Paee 2 A P P Ii A Ri N C' ES I 2 3 4 5 6 (Deposition commenced at 10:08 am.) 'IHE \'IL)EOGRAI'HER: Here begins volume one. . . 3 videotape number one in the deposition of Jeffrey Beck iii the 4 matter ofieanetic Wallis versus BNSI-' Railway Company in the 5 t Juited States District Court frii' the Western District of 6 Washington at Seattle. 'the ease number is 2:I3-CV-00040-I'SZ 7 Todays date is September the 6th. 2() 13. Were on the record. 8 Flie time on the video monitor is 10:08 am. The 'ideo operator 9 today is Carlos Garcia of Merrill Corporation. This video 10 deposition is iakin place at 777 Main Street. Suite 600. Fort -. . II Worth, Texas. ouiiscl. please voice identity yourselves and 2 state whom you represent. 13 MR. JI3NGBAUER: On behalf of' Plaintiff my n:,ine I APPEARING ON BEIIALI 01: TIlE pI:AINFII:I. MR. WILLIAM U. JUNCIJAUER (via teleconference) Yacer, Juoghauci & liarezak 2550 University Avenue \V Suite 345N St. Paul. MN 55114 651-288-9500 svjungbauer6ayjhlaw.coni 2 7 9 10 Ii 2 l3 APPEARING ON BEHAI.F OF THE DEFENDANT: MR. BRYAN GRAI:1: (via telcconfercncc) RYAN. SWANSON & CLEVELAND 1201 Third Aveinie Suite 3400 Seattle. WA 98101-3034 16 17 IS 6 17 8 9 MR. (rItAFF: And on behalf of' L)elndant. BNSI' IS ' 14 iii .ILiitasier. I-i -grattiyaiilatv.coiii IS Also Present: I') 20 (arms Garcia - videocrapher 20 2! 21 22 23 24 25 24 25 Railway 1_ompany. my name is F3i'van ('naff. (i-r-a-t-f I'm i',tI, Ryan. Swanson and Cleveland. 11W. VIDEOGR,\PIIER: The court reporter today is Rhortda Mears of Merrill Corporation. Would the reporter pleas swear in the witness, ('Ihe witness was sworn.) TIlE VIDEOGRAPIIER: Please becin. JEFFREY BECK. having being first duly swons, testified as thllows: EXAMINATION P:i!. S Page INDEX 2 \ViINLSS: JEFIRLY BECK Lsciii,ii,aiin b'. Mi. iIiiIgbaki Ieroiei Ce,i,fic.iic I PAiI 2 I 26 4 F.XH1RITS 7 5 NUMBLR & ULSCI1JPI ION 0 . E-mail d,,ret Noveinheu 2 i. 2008 ..............82 F.xtiit,iT 20 BNSF Peionat Peifonimce bides Sv'.iiii Lxtiibii 21 12 I.. 5 16 LnipIos'c 1iijiui liicidcia Noiific;iiioii (iirôiiolov ot'F.veia Ru'.k Aoiiuii:ibiItty Poiuu Eshihii 122 ...........................57 2! 16 A Yes. 17 Q IS A All right. What is your lull tame please'? Jeffrey Dwani Beck. 19 Q And your address? A 605 \'est Aurora Vista Trail. Aurora, Texas. And the 21) Alien,aiive IiaiIdlin8' \1ien ,Aic Lii piu'.ce'. I 22 22 F.xluibii 137 2". 24 57 BNSF (i Deiy Injury Medical Siaiiis For, Exliubui 38 liiit'rvicii' Iniisciipt tOo Yes. Q And II' you ha e any confusion or question about 4 understanding any of'iny qtiestions. would you please let it,' IS so I eats try to rephrase ihe question for you? . 68 Lstubii 6! E'iiaiiLiiedFebLLia,\ 19. 21109 i05 2 ................2 ldeutri6ei'. Ba'ed t)ii Ttie Fotlowui, A 3 LxJbii611 Lsinbai I I2 7 19 for the railroad may deeidc to ask some questions thereafter. 7 'I'o start off with. I'd ask yoti to understand that this is a deposition that nay gel played for a eouit and joy, but I want 9 to make sure yoti tindersiand that any -- we can't both talk at It) the same time as -- as we spoke ahotit just a moment ago. Do you understand that' I F.xhibii 2' Fxtb;;il,.LI Q Good morning. Mr. Beck. A Good inoriiiniz. Q As you heard a nsontent ago my name is Bill Junghatier. And 1 will be asking some queslions first ofyou. And counsel 6 Lxtiibii 9 3 BY MR JIJNGF3ALJER' - .i 24 25 ip is 7607h. Q Mr. Beck, what is your position of employment . at this tune. A 1 am a corridor superintendent for the Springfield Division for the fltirhiimgton oitl,ctn Santa Fe Railway. . . 2 (Pages 2 to 5) Merrill Corporation 877-489-0367 WVW. merit Ucorp.eonv law JFFFRFY BFCK 9/6.'2013 t',L I 2 ( Q And brielly wh,it is a corridor superintendent? A A corridor superintendent works with the dispatchin ,., 7 staff and monitors train traflic across a certain zone. I am on the Springtield zone right now. Q And how man -- Geographically how big is that? A Geographically stretches from F.nid, Oklahoma as I north as Kansas City and then as fai east as Birmingham. 8 Alabama. 3 4 5 6 9 10 II 12 13 14 15 16 17 18 9 20 21 22 23 24 25 Page 5 position? A Almost two years. It vill he 20 -- or be two years in October. Q What position did you have prior to that? A I was a terminal superintendent in Seattle. 5 6 7 9 10 II 12 13 14 Washingioti. 15 Q And how lone were you a terminal superintendent in 16 l7 Seattle. Washington? A ipproximately three years. Q I will et hack to that. What did you do prior to Is being a terminal superintendent? A I was a terminal superintendent in Minneapolis. Minnesota. 20 All right. For how long? A Approximately two years. 21 24 Prior to that? Q 19 23 Q A And prioi' t that I wa -- Prior to that I was a yard master in Galesburo . Illinois 4 8 Okay. And what is -- How long have you held this Q ()kay. Q 25 Q For how long? A Approximately a year. Q And do you have an' railroad experience prior to being a yard master? eswas'trwitchman A condUcmr l'or how lone.' Q A Four years. Q And where did von work? A Galesburg. Most of my time was spent itt the Galesbutg area. All right. And prior to being a svitchnian conductor. Q itt it you have any other prior railroad experience? A No, sir. Q Okay. And is ii Iiiir to say that all of your jobs from when you started as a yard master iii ('ialesburg until the present time have all been what you would call exempt jobs i non-union ohs? A No. The first four yeats as a switchman conductor and then my time as a yard master would be a scheduled employee. Q Okay. So then as you started -- In what year did you start in B irminuliaiii, Alabama as a terminal train master" Pace I 2 3 A I believe it was 2001. T was a directot 'it EL Ms Electric I rain Manaeetnert 4 6 A Electric Train -- it's now -- It wits the pilot protect fi'ir l'l'C ouromput-eonLrol base so that a tinnY cant get into another train'sbk*W it's working with the 7 Government on that. 7 8 Q Okay. In other words, it's ,l program to L'Ao stopw train collisions by automatically remotely beini able to st1) 4 S 9 10 I A Systems in Fort Worth, 1es. Q And what is that. FTMS? 1 12 13 14 ii a in under certain circttiitstances" A Correct. 5 6 Ii I? A Prior to that 1 was a terniina I manager ii Uirnu nghan' .13 14 Alabama. 15 Q lor how long? 16 A Two and a half years. Q And prior to that? A I was a division ti'ain master in Thayer, Missouri. 16 Q lOr how long? A Two yeats. Q Prior to that? 19 17 18 19 20 21 22 23 24 "S 5 ermutal superintendent with A I 05 cisas' the Ja-to-dav operations, the safety and just tl _a1l management at the BNSF railway syIem ihete Mv limits were front Vaiieouvei hush I ..!uiitbia down to Vaneous er, Washineton and then os er lie scenic sub to \Venatchee and in er the stampede sub is tar as E Ilensbtir. Q And when you say sub, those arc suhdivisioiis, coiTeet? 17 A 18 Q Okay. And when you say sat'ety. w 20 21 A Ternii na I trai ii master in B i tm ingliam. A labania. Q Prior to that? By the way, how long were you ternui intl train master there? .\ 1 i years. P"' Q 'rhak you. Now, what were your job duties as a in Q Okay. And poor to that. sir" Q okay. So is it fbi to say from 21 it) I unit I the present time von has e been it -- a company oitieiiI or iiiaiiagcmcnt 'n? A Yes. sir. that is correct, I) I didn't heat you. sir. A \'es. sir. 1 hat is correct. 24 "S Yes. sir. _eyour saie1 related .\ I helped othem e.5en'' rk&iig LhEaUgh thesaity 1roeess'. led saktv meerines. aiiieiated in satty ui1eetin. txirtieipaied with the saletv committees in different areas. wi'ildn with them to promote sakiv. Q 0 )kav . A 'ni c ' 'liii n tine did vt'u become -- were von Connie ted Ie2m diii iiiiurv iiivolviite M Jii Wa I lis? I Pages 6 to 9) Merrill ('orpora Ii on 877-489-0367 www.meiri I lcorp coin/law JEFFREY BECK 9/6/2013 P;ig 1 2 3 4 S 6 7 $ 9 It) II A Q 10 Yes, I was. I ave you been able to review any notes. memos. 2 anything over the Ilast tsv weeks or - to prepare you or refresh your recollection k)r this deposition? A Q A t'mge 12 I 21 22 23 24 25 MR. ( iRAIF: Objection. Compound. Lack of S 4 Yes. I did. \\'hat have you reviewed recen1l 5 I have ivicw1fliibtesor I - I ouess the 7 6 dmIi'erenl communications that I had by -niail .\nd I did revickv the iti'esItgation horn the OSHA over this -- over this S 9 So those are the two tltints that I have reviewed or Ill those -- those are the things I have reviewed. II Q You say corn ii inn icat ions by c-ma ii. Wli icR 12 2 13 coni nun ca Lions by e-mail are you talking about? I3 14 A The coininun icat ions that I had saved lioni the incident 14 IS where I was eoniiiitinicaiine with nv supers isor and our -- ii IS I 6 would be our Human -- or liii soti'v -- our Labor Relations ovet 16 I 7 I nvestueattons. what the incident was, that type of 17 IS imilrinatioti. I$ I9 I9 Q 1)o you have those wi lb you? 20 exchanges ot' inlbrmnatioti between yoursell Mr. Ness, Mr. mmmc om- anyone else with Mr. Hurlburt? I itciclent A No, I do not. 2)) Q Flow many -- What communications did you have with Labor Relations? I have seen a lot of c-mails from back in those days. What c-mails from labor Relations are you reterring to'? Is that with Mr. Hurlbuti or who would that have been with'.' 21 22 23 24 25 toittidatioti. Q l)o them one at a time. Please tell inc beginning with each c-mail you Cuull recall the subject matter betweeti -- of ally discussions between yourself and/or Mr. I iurlburt? A The c-mail matter hetweeti myself and Mr. Huilburt were basically asking the queslioti ol'iI the investigatioti notices that we were sending ourwrWordcd correctly atid for the proper niles vtolattoti. Q Amid (lid you provide the list of quote facts or the flictual inlirtnatmoii lbr Mr. II uirlburt to review, or how d 1(1 you get that in6niiiatioiu to him' A 'I 'hat in 6.rmati on would have come Irom the original infottuatioti that I i'cccivc(l ti'oin the train master and the tci'nii nal manager on duty that were there at the incidetii and then the tilormnatinmi that they wrote up and reported to mite. Q ( )kav. iiid so did you lorward that oil to Mr. II urlburm with copies to other individuals, or did someone else (10 that? A I can't recall w lie tlicr I did it or somebody else did it. I -- I don't mccall that. Q And wtial was (he substance of tile itiformnation thai was conimnumueated to Mr. 1-lurlbuil prior to deciding how the It I 2 3 4 5 6 Pamie A It would hove hecit betweemi iuvseIt[utt Jone Dmirrell Ness mind ,Iirn Liumihurl over the () .\hI rwhii. Is II Ian In say thai at some p0011 iii time it -- you and OI' others at BNSF svei'e talking to Mr. 1-luriburt about what type of potential charges to hrin li.ir au imw,tigation notice against Ms. Wallis and/or Ms, DutP MR. (IRA1"F: Objection. Compound. Also lack of 8 foundation. You can go ahead and answet. MR. JUNGBAUIiR: I will rephrase the question. 9 10 Q Excuse me, sir. I'm going to rephrase the question It With regard lirsi to Ms. Wallis, would you outline kr us the 12 different cotninminicalions by c-mail that you had with anyone imivesticaikumi notices should 1)C 'xoided? MR. ( iRAl:I:: Objection. Calls lir speculation I ack ol' fumidat ion. 4 't 6 7 3 14 I5 16 17 IS 19 W till regard to her that you have reviewed? A I had eommttmcations with Darrell Ness and Doug Joties regarding the incident itsel t what our position would he as lam as the tntmrma t ion that we had not received tiom Ms. Wal Its or Ms. Duff at tile lime and what we needed to do to make sure t lint the investigation was setit out pm'operly. Q Okay. What was Mr. I Iurlbuit's involvement? A 9 lIt Q HOW many c-mails went back amid forth that iticluded Mr. II nil l)urt's name on them'.' MR. (.iRAFF: Same objccttotis. Lack of 2 foundation. Cal Is for specu latiomi. IS Q To your knowledge. the ones that you reviewed recently how many -- what's vo best estimate the number umi 16 c-tnai Is? 17 A 14 is 9 Fiotu -21 MR. ( iRAF1': Objection. lack ol toundation. 22 Q Isn't it trite Mr. I lurlburt was one of the people that 23 you cotuouinicatcd with iii this regard? 24 A Yes. i'hats correct. Q Would you please outline for -- br US tile types of 25 20 S Q I will go back. Isn't it -- Yost -- Didn't you testify. Mr. Heck. that some olthe docutnetits you reviewed ver c-mail corrcspondcticc between ourself and'or Mr. Hurlbumrt and/or Mr. .Iones and Ness regarding. lirst oI'all, the WaIlis situation? A 'Ihe incidetit. yes. 21) I -- I saw one. Q One. [)o you memnember what date it was? A No, I do not. Q Did you have any telephone conversations with Mr. 22 tIli rtburt? A Not thu I I can recollect. 23 21 Q Did you have any c-mail contacts with Mr. Jomies regarding Ms. \VaIlis? 21 25 A Yes. 4 (Pages 1010 13) Merrill ('orporation 877-489-0367 www. muieurmllcorp.conu/law JEFFREY BECK 9'6/70l3 I luau? I I.,) I 1ttV 2 A I don't -- I -- I tloui't remember hosv many. -1 5 6 Q And what was that about? A Just the overall incidents or the o ettII incident 8 9 II I2 5 situations'? 6 I reviewed one e-mail, and I reviewed the information -- on the OSI IA interview. Q Just your interview? A Just my interview. Q (Jr anyone else? A Just ny interview. Q Ukay. Yout also said you had some notcs. What tote. did you review" No. I misspoke. I said -- I meant c-mails. I dotit A bus e atsv wrtttett tsotes. MR. JI TN(;flAI TR: Does the court reporter have Exhibits 16. 20, 2l. 22. 23. 25. 26 by any chance? (0ff-the-record discussion.) 7 and what our options were as far as niovitig forward. Q Did you c-mail hi in or diii he c-mat I von? And I am talking about Mi. Jones 110W. A I would have c-mailed hint 9 tO II 12 Q And what were the options that you were consiikrint I3 4 reviewed some docutnetits recently. I would like to sce what the\ are. And so if you have -Q flow many pages of documents. Mr. fleck, did you reviev in the last month or so with regard to the Wallis and/or Duff 2 Q What is ynut best recollection based on the documents you just reviewed -- you reviewed recently? A I reviewed one document that I had a conversation with hint or I had a -- a communication with him on. 7 to Pace t(i I 4 15 accordinR to that e-mail? A I was en inc him the facts of the incident and 16 statintTT I7 were a tug a itt. 13 14 IS olaUTliose were the options We 16 17 I Q Whetu did you last review that doeutiietit't 1$ 19 A 2() Q About a week ao. Who did you discuss it with. if anyone? 20 we cati. 21 A Noone. 21 MR. (iRAFF: (.)bjeciioti. I don't have -- I don't have a copy of that. MR. JIJNGBAUER: Coutisd. all of these exhibits have been previously provided in the documents that were seiit to Mr. I .entmuu in preparation for the last trial. And they're 23 24 25 MR. JtIN(iBAtIER: Let's show hint Exhibit 57. it 9 1 MR. (IRAFF: T object just to the extent it calls for any information that may have been communicated. Mr. Beck between you and I. on an attorney-cluciut privilege basis. 24 Other than hat -25 Pate l 7 MR. .TI.TNGBAI IER: Counsel. I inn not asking for substance of any conversation hcts een attoriteys and Mr. fleck. Bttt I would like to know, first of all, sho. if anyone. he received or sent cotnmunicatiotis to with regard to the -- the -Ms. Wallis's situation ease. .\ I reviewed It. MR. GRAFF: Is that a new question. Mr. 8 J t.tnglxt uer? 9 MR. JIJNCiBAtIER: No. No. Q And I was going hack to because is e were focusing nit -- individually on Mr. .Jones. 'Y ott said there is one e-mail. Did you receive a reply from Mr. Jones? 2 3 4 5 6 II) I 12 A I don't recall whether I ieee i ved ii reply I'm iii lit to. I5 Q 16 A I )on't recall? I don't recall. I3 14 17 18 19 20 21 22 23 24 25 no. Paute 17 2 3 4 S 6 7 8 9 II) I I 12 13 14 IS MR. JUNGUAtJIR: Counsel, do you huve copies i the c-mails that were sent to him so we can ask him specilically about those c-mails? 1R'NR'AFF 1'donathttvc any c-mails with me. MR. J(N(ill..\t tR: ( thin tat', flit tin question. We've -- We have previously asked iii this case far all c-mails to or trout cOiiipafl)' ollicials is ith regard to either Ms. I )ulI and'or Ms. Wal Its And 1 ha got ten a ntituher. hut I don't know ill have them all. And that's why if this gent letiiatt has I 16 17 I8 19 2t) 2I 22 23 24 25 -- they're identilied exactly by these ntinthers. So yott have all uI these. MR. GRAIl: Objection. Well, you didn't tell me what documents were going to be used at this deposition. You c-mailed, I think, a nttmber ot' like live, seven exhibits just a tèw tmlintttes prior to tIme start of this deposition. But I am goin to object. I. Iti I get a copy of the exhibits that you i tttertd to use and I cii it have t bent in tiott of me, I atit lot going to allow the quest toning to go forward. If you svoukl like to e-mail me copies of those exhihits. I am happy to have the flict It tv here print it ottt. and then sic can go forward si i lb the questioning. MR. JI)NGI3AIILR: Cotinsel, we're doing that, butt you already have all oI'these exhibits. You have them by tlte' titituhers. MR. GRAFF: Mr. Juimbauer, you did not identity any exhibits Ihal siere going to use a! this dposttton uimti I just a tè\v ittinutes prior to the deposition. And the oties that you're wantmttg to talk to the wttness about now were not iticlnded. It' you want to take a break, scud tue those exhibits. I a in happy to have the receptionist here p11 it those out and hen we can Proceed. MR. JI rNGRA ER: Well, we're ohvioutsly goitig ti have to. We are setidtttg tltem to you. it's going to take longer for von to pritit them. hut I s'iII go through questions 5 (Pages 14lo 17) \ let'riIl ('orporation 877-489-0367 www.nterrtllcorp.com/Iaw JEFFREY BECK 9/(Y'() 13 Pige I 2 5 first, and then WC v. ill ci iii up colil ii tiling this deposition to make sure I get my hilt seven hours. au are dn,n Paite 21) I memory? 2 I ant sure it would. Are you saying you never had -- Are you saying you never had or you don't -A I don't recall. 7 scvcn hours with iw witncssec I m going to need my seven hours with this wit ness. So based .ii I he s a v. cue otiute on this if you're going to make this type of thing. So let's just do it without. MR. (iRAFF: You have the time. You want to take 8 a bicak and send me the exhibits? 9 9 MR. JITNGBAUER: I will make sure thev'i'e coining. 1 am going to do seven hours of deposition because ou're doing 10 II seven hours of my witnesses, and I am entitled to do it just like you are. And we're going to go as long as we can today. 12 And then we wilt continue and do ii some more. But we have go I 3 to get this done. So [want to -14 IS MR. GRAFF: And we are here. I am not -- tm not saying -- I ant not restricting ynut time. You can ask any I6 questions you want. You do get seven hours. I understand 7 that. And we will finish it today. Mr. fleck Itas set aside I today to (10 the deposition, so we will liritsh the deposition I) 3 4 5 6 I0 II 2 13 14 IS l( 17 IS IV 20 21 22 23 24 25 7 3 4 5 6 7 S A Q Q Okay. You were toterviewed under oath by the Depaitinent ot'I.abot with regard to the incident tnvolviug Ms. Wallis antI Ms. Dtiffas fir as the assessment of disciplitie and investigations. con'ect? A l'hai is correct. MR. GRAFF; Object. Vague and compound. You can go ahead. () And Mr. Shaker was present -- a Mi. James Shaker of Ryan Swanson Cleveland was present when you is etc interviewed h Ms. I,aura Aunan of the F)eparnnent of labor, correct? A I hat is correct. Q And Ms. Aunait advised you that -- and -- regarding the tinited States ('ode 1 tile IS Section 111(11 regardinu false today. 20 may not be able to because MR. JtJNGBAt.IER: the court reporter may not be able to do it, hut we're going to go until I can. So lees -- let's tb this. 2! statements and had you review a docuiiieni bclitc she iiitervicwed yoti. correct? A I don't recall clomg that, bitt if that's what you 22 have 23 Q Mr. fleck, at some point in tilDe IS it true that you decided to assess or to notice an investigation on Ms. Wallis 24 Q And is it accurale to say that at or near the time ot' when 'ott interviewed with Ms. Aunan that vou had approXimately 35 exempt or nianagemeni employees that worked I.ir you'? 25 Page t') I 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 IS 19 20 21 22 23 24 25 wit It regard to the incident ss here she i op ttcd liet knee? A Yes We - we issued an tnvestigatmn notice to Ms Wallis lor the mci(lenl involving her iiilui) utiti ito investigation on Ms. Wahlis tui iltit p1 Vtt l)toI)ei inlormation, correct. ç Aitd lto did you discuss this witit bebie coming with these charges against Ms. Wallis'? MR. (iRAFF. I am going to oh jeet just to the extent it calls ftr any communIcatIons yoti may have had with Page . I 2 3 4 5 6 7 A That is correct. Q And probably 700 tiflion or scheduled employees ss'orkin br you? A Under -- under niv management tier, 'es. Q Okay. And. iii thct. these -- you had as many as six terminal managers and two assistant superintendents that iso ii Id I tell) manage sonic tilt liese employees. correct? Ihat is correct. Yes. S A 9 Q A id at the little ii) counsel. Instruct you not to answer if it involves eon)inilnications with counsel. I MR. M JNGBAI IFR: Actually it' it was involving cotinsel, I want to knots the names. I won't ask the content. I. 14 In tiet, I will ask it directly. Q Did you have any contact with Mr. Monlgomciy. a IS . I lawyer for BNSF. prior to issuing the notice of' investigation on Ms. Wallis? I A I don't i'ecall Itaving a conversation with Mr. IS IV Montgomcty. Q Did you receive c-mails or other communications from 20 Mi. Montgomery prior to making the notice of investigation? 2! A I do not recall get Itng anything from Mr. Montgomery 22 in this -- this matter. 23 24 Q II' one of the c-mails that do exist in this matter have Mr. Montgoinety's name ott them, would that refresh you 25 I I 0 t the ii teident invohv ii ig Ms. Dull and Ms. Wahlic. the immediate supervisors would have -- would have been the train mastet on duty at the nine. Mr. Mike Weher,,, .\ That is eori'ectes. Q' Now, is it ('air to say that one of your charges igiitnsi Ms. Walhis was that she allegedly was not being torthconting about her )ersonah iq. Is that cort1 s iliatis 'orreei. MR. GRAFF: Objection. Vague. Q And that was your decision to to ultimately impart with other management officials to make that charge against icr. correct'? A Coriect. Q \Vhai was the hass of your statement that -- xetisc me. What is the basis of your charge against Ms. Wallis for allegedly not being I'ortbcomtng about her personal inpury'? 6(Ptgcs 18 1(121) Meirm II ('oqoration 877-489-0367 www.nietrtIlcorp.com/l .IF.FFRF.Y BECK 9620I3 l,ize 24 2 . A She did not report what the incident was. how it happened and how we could prevent ii horn happening in the tuture to prevent It tom happening to somebody else. - QtiiTii true she nmiediaie -- that Mr. \Veber as medical a ttent ton so we \vault to make sitre that they have got the medical attention. And then otice that's done, we havc noti tied by radio almost as soon as the u1ident oceutied 4 c 6 Ms. Dot 1 that thet e had been a putetiun I tuj uty? 6 7 that is coliect. Q And then Mr. Ferguson. another oflietal. came dos the accident scene as soon as he could et there! A Yes. that is coiject. MR. GRj\FF: Objcction. Calls tn speculation 9 S 9 I (1 II 2 I3 A Ves. Go ahead. Q S CIII to the scene while both M.uft ajjvIs. Wallis were still ireselit 15 A Yes, that S Correct. 15 Q And you -. you said a moment ago that your -- your 16 allegation of not providing enotigh information was so thaiSI 17 could analyze accidents and try to prevent them. Is that -IS 17 18 j4) 2(1 From a study point of VICW. IS that the 1)01111 of whtii you were 19 nying to say why you needed the information? 20 mTGRAFF; Objection. Vague. (ompound. 21 22 23 4 14 21 Q Okay. Vliat is the reason chat yost would say thia you were charging Ms. Wa1lisfora1legedvnQL_pruvlthng -- b'inti forthcoming about her pemsonal injuiy? MR. (_iRAI'F: Objciion. .-\sked 111(1 ansWeie(I 22 23 24 us 'ha the -- boss the what occurred during the iliciinl. And then rk thr u'h those to try and rte entjt hitppetiing -JLofll 'Xe 14 16 Ii at give us t he in format tori as Ia r as I') 12 Is it yont understanding Mi. F eLgusun cem-tain lorms that have tojJilkd out, period. Do you agree with that stateinelit that you told Ms Autnan? A Yes. We watit the enil)IoYee to get the medical attention that the' need. Anti then oiiee that is done, then we have -- se need informatton itud we putt those mIormattons -j that inthrtna tiuit on tn Irciiig -- thiat ale Ii lied out happdninQin the tilt uric. you actual!) do that! l)id you actually once you Q I oi the in u3rniatioti in the -- regarding the incident to Ms.1 \\allu, Lilt! you ever anat\ /.e it Lu see hos to prevent that the luture? MR. GRAIL: Objection. I tick ol foundation. Calls fur spceulaiiou_ 7 (!behiee o e -- I believe we did.. Q How did you do MR. ('RAIT: Same objection. A 1mm the -MR. (:;RAFF: Ate OtL asking thi' his personal involvetiietit, Mr. Jungbauer, or how did I INSF do it? MR. 11 rNGRAt JER: I want to kitow -- I want to kjto Pige 2 1 Q You can answer. what this ciuticnian knows as to what BNSFdjl.jf anythino. to 2 A Ms. Wallis had an oblijattion underiC( ) RI rs study the uncitlnUm,,imi Is. Duliand Ms. \Vahlis to see 4 give us, the BNSl all the foct and inliwniatum jut. Anl1ic 1[id not that in icgards_toli Q Can you show n a (ICORI-: cite, a ( iCLIRI'. rule that sa' 4 6 site must give all tite timft t-cgat-din1ci ilijttr'?- 6 3 7 S 9 10 I 12 3 14 5 I6 17 gy.e.us.i's_ A It's-MR. GRAFF: Objection. Aretttnentntivc. Yoct cuit 22 our (ICORE rules they are required IoqaaI ttiuper'sisor 23 us' the specitics 0 the injury or incident. lt coiikl he a deratlnietit It could be an nJilr\ . I lic.a4ci..r4pL(juInnnl.you know, very -- Fit-st and thremost. thtev'ie supposed to el 24 25 8 understand the question, sir'! MR. GRAFF: I just object to the compound na tilie. hut voit can go ahead and answer, Mr. I kck. A Yes. I do umtderstand the question . And yes, I do y believe we lound root cause through the investigation proees.T was that there was a rule violated 1 lie title that was vuiul:ileil t\:Is that hen tuiuuinulluluezitlon is lost between it person on the ground amid somebody operating a locomotive, that locomotive m to stop. iliat was not Johlowed. - - Dfas A ever detertuineul found that Ms Wa llms violated that nile? A Once-- MR. GRAFF- Objection. Vague. Q You can answer. I 'I') fl -"ic'öe the mvestigation or once Ms. I )lI took tcspuitsibiliuv for the rule violation, that investigation was cancelled br Ms. Walhis. 1) Why? v1erriIl Corporation 877-489-0367 root ., e incident were and whether or not thcia e\' mecoti__fliillipmis on the basis ut that. Do you Q Correct. And are you aware thai Ms. -admitted that she violated that rule? obligations are ticjjliat_ntIe? MR. (iRAFF: Objection. \'agtte. Assumes iucl' 21 19 21) 7 go ahead and answer. Sorry. Mr. Beck. A I dont know tlte exact ntiuiiiier. I think it'GC(')RE I .2.7. hut I do not know the exact number. ôkay. And is t your claim that (ICORE Rule 1.2.7 requires an enplovee such as Ms. I )ulito provide injury megardiiig her personal inl)!r\' as soon asit occurs or whcthci her:_ What is -- What is your understandinti of what her not Lfl evidence Compound question. All riuht. I will me-ask the question. You 's crc -Q you were asked by Ms. Atinan '- speeitmeally she asked you wh is required of an eniplovee the's ire lilt ured. Your answer, IS what tI NO JEFFREY BECK 9/6/20 13 4P' Page 2( U 2 A Because we -- we have or Ms. Dull admitted that she did not stop the locoitiotive once she lost visual contact with Ms. Dull. Q And von would agree that under the GC'ORF titles thai once a communication if You're operating by hand signals. for instance, that once Ms. Dull loses sight of-- ot Ms. Wallis, that it's Ms. L)uft's obligation to inminedmately stop the train? alternative ltiindluig in order for Ms. Dufito get altetnativc handling 11w that mci dent, she had to udmit that she was at S MR. GRAil: Object to the extent it calls for a 10 I legal conclusion. - Q You can answer. A Hy ottr GCORF rules, yes. I -- 1 I2 13 14 IS 16 17 18 19 2(1 21 22 23 9 10 II I think your statement scot'rect. Q All right. And by your (iCORE i ukthetäctth, Ms. Wallis goes out of' sight is not ii rule violation on Ms. \Vallis jiir"Th and of itself' it's Ms. Dttfrs obligatioji. She's ot the controls of the locomotive to stop the train. correct? MR. ('iRAFF: Same objection. Compound. Q You can answer the question. sir. I -- I sil I restate the question. Or I will ask the court reporter to Page 25 12 13 14 IS I6 7 I tisult. And she did. And I will get to that in a iii iOO te. I hit what I am : J 'ire lo . is' for all o getting at is if, in f-met you 'i aim e ri have the investigation (I see whether or not Ms. Wallis or anybody els 'di wrong? MR. (.i RAFF: Object ion. Argumetitative. A I dotit have nit answer for that question. Q What was the -- When you say you spoke to labor Relations about once Ms. Dull' had accepted responsibility and therefore was given at tensat ive handling, who ii id you tat k to at Labor Relat toits about h is? A I don't k no\t' exactly who I talked to. It might have been Jim Hurlburt. I don't know. I don't remember. Q \5/ II, on a decision as -- lists was a so-eat led high priority investigation, correct? MR. GRAIl': Objection. Vague. 9 20 21 In the c-mails that BNSF has sent to us, the investigation t mo Ms. Wall is is -- has been labeled high priority. What does that mean° Q restate it since we had an interrupt ion there please. (The reportei icads the question.) 22 23 MR. GRAIl': Objection. lack of foundation. MR. (,iRAI:l.: Sante obpection. 24 ('aIls for s1)ectilatiotl. A I -- I don't recall any ol' the c-mails that I saw say 24 25 Q You can answer. 25 PaL'e 29 6 A That would be collect tip to one point. Ms Wallis would have the opportunity if she was riding the locomotive the steps to reach up and arab the -- vitli the particular locomotive that she was on. there was a glad hand up to hei rioht. She could have put the train into eiiiëigencv. Il, she was never clar wit ailure to do that: Q as she? 7 A No. 8 9 15 16 17 IS 19 20 21 22 23 24 3 - A The invest iaton that was sent out for Ms Wallis on the oriuiiial incident was cancelled for Ms. 'allis. Ms. l)ull took alternative handling. Q lint it was your decision to cancel the investigation 'garding Ms. Wallis as to what caused that incident. irrect? A I -- I was in -- I helped make that dccision, yes. make that decision with? Q A That decision would have been mitade through, one. I .abor Re In ti ons. I )oug .Iones, mysel l but a I so in our I 5 6 ott who was theme omi that 7 Well, here is an e-mail that you cue to Mr. Jones to Mr. Ness copvin Anthony Boldra and Brad Anderson rcgauduui the Willis incideni . And on importance ii says high. And Ii's dated Noveiriber 21st. 2008 at 7:14 ant. Aiid you have got a long paragraph explaining Ilicts that you believe occurred. And then mu have eot your suggestion is we send out two investigation notices. one entire crew for failure to comply with proper 1) It) II A Theic was ito -MR. (iRAFF: Objection. I think -- I loki on just a second. Mr. Beck. I believe it misehaincterizes prior testimony. With that said, you can go ahead and ausxvet. high priority. All ol our investigatiOnS -Q (iii ahead All oI'your investigations what? A All ol' our investigations are equally important. don't think one takes precedence over the oilier. When -- wlmeim 1 as an officer ss ould talk to Labor Relations, it would depend 4 8 Okay. So there were no rule violations with regard to causiiw the accident that Ms. -- that the I INSF investigation ever 6nind with regard to Ms. Wallis, correct? 2 14 I 2 mven day. Q Ill signals as when the pilot could no longer he seems, the movement 15 should bc stopped. And then you've got arule two, Wallis for 16 timmiure to liarnmsh untl.urmaiion regarding an injury, as she has 17 ii'auid will not supply a statement as to the event. Did you IS writ' 'I? 19 GRAF!:: Hold on, Mr. Beck. I am going to 20 21 '5, 23 24 object. Mi .Junghauei'. until the witness ins a copy of the c-mail in l'ront of him or a document that you want hint to refer to, I have to object. lt'vou will give him a copy ol ilie exhihä so he can at least review the document you're talking about. I aiim happy lot' littit to answer any questions you have, 8 (Paoes 26 to 29) .\'lerri II (.'orl)oriit ion 877-489-0367 www. merril Icorp .com/law JEFFREY BFCK 916/2013 l.ige .2 .01 MR. it )NGI1AL IR: I will, but. Counsel. the 2 3 4 S 6 7 8 9 10 II 2 13 14 IS 16 17 1$ 19 2() 21 22 23 24 25 witness says there was only one e-mail that he seat that went to I )out! Jones rettardinu this. It's dated November 21 st. 1 2 Lack ot' totindation. A It -- it gives an eIixtive date oh uly 1st. 2000. MR. JUNGBAtJER: All right. And I ot'tr 3 MR. GRAFF: What cxhibit, Mr. Junebatier? 4 Exhibit -- Exhibit 110. MR. J1JN(i1lA(iIR: It's l':xhibit 16. (Exhibit 112 was previously marked (or identification.) 5 MR. GRAFF: Okay. Hold on. As long as I can 6 Q Okay. Going next to Exhibit I I 2. there arc hiwr have the exhibit in front ol' me and so can Mr. I leek. I don't ' pae correct? have any problem obviously with you asking him questions ahu ii 8 A Yes. 1 hat is correct. it. I list dutit have the exhibit in front ol' mc. I don't 9 Q And arc you t'ami liar with the risk identitier point believe Mr. Beck does. It) 'Vsteifl that BNSF had in e etoingroin and the last MR. JtJNGllA(iIR: We sent it. And. Counsel. von ii page is effective allegedly l"ehruary IX. 21)07, and then it says do have the document, as I said earlier The hict that you. - 12 revised July 19, 2007? choose not to bring anything to an in.estigation -- I mc:ui 13 A I -- I an familiar with it, yes. deposition, and the tact that this witness has reviewed 14 Q Okay. And isn't it tate -- Let's just look at the IS last page of-- of Exhibit 112. the one that says effective think tiiat'skiiif, you know, how shall we put it. Heotild 16 Fcbniary 17 to Februai'y IX. 2t)07. And it's got -- (in top it review documents that he authored hut chose not to brinu them I 7 says l)ei'5oiil perFormance index, months, injury, says And this is a document that he authored. And I will show it -18 repoiiable and non-repotiable. Do you see that? W MR. (iRAIl: Mr. iuiiebatuer -- Mr. .tunebauei', I am 19 ..\ Yes,sir. happy to havc the witness answer questions about documents as 20 Q So an employee it' you're down where it says lYE. dow soon as we have copies in front of him. There ale voltitninous 21 below there's tour diflrent names. One is MOE, MOW, 'lYE, exhibits in this case, as you know. And as I stated 22 other, eoi'reet'? previously, if YOU guys would have let us know ahead ot' time 23 A Yes. I see that. what exhibits you wanted to use, it would have sped this 24 Q TYE is train yard engine eiupboyee. correct? process up. We didn't get I lietit until lit eta liv nit flutes betorc 25 A Yes. I I'aL',' I 2 Q And that would include Ms. I)uIi'and Ms. Wallis? the deposition. I ant happy to have the receptionist print thet i oLit 1i you send (hem to me. A Yes, sir. Q And when it says threshold, 47 )Ius n.ieans 47 toit MR. J1.FNGBAUER: I will go off-- Does the couti reporter have -- Will von ch 'k tileaMeweanu. i'ecord if We nee(l to. FxI t iits 16. 20. 21, 22. 23, 25. 26 4 c 0Iovees. cr7 6 and -. and the statement ol' Mr. I leek to I lie -- to I aura Aunan - (1 A 7 \Ve s'iIl uo oft' the record until you cet those, and then we vill 7 ask (luestions. 8 MR. GRAFF: Objection. Vague. () You can answer. A Anything over 47joints at this tune was eonsideied 3 4 or above has a -- a am Iys Yes. 13 MR. GRAFF: Okay. II IL Vll)LOGRAPI Il':R: (iolnu off the record. I he time now is 10:51 am. (A break eitstic(l front 10:51 am. to 10:58 am.) II IL Vll)LO(iRAPI ILR: We're back on the record 14 The time now is 10:58 a rn. 14 Q Now does -- Excuse me, Mr. leek, do you also have th exhibits that counsel just identified. Exhibits III). 112, 117, 15 t..) And a rd nited ciuplo cc ts a! a risky employee. crrect?1 A Based on this inFormation, correct. Q Okay. Now, if you go up and you look at the top of that form. it says for a reportable injury an employee gets 40 16 l)OifltS. coi'me 122, 128, 136 and 137? A Yes. 17 'cro to -- ihere may he something cut oil' of 9 It) II 12 5 16 7 1$ (Exhibit lit) was previously marked For identtlication. 2(1 Q All riaht Let's start wiIl'!iiitl10)Wliat is A 12 13 19 ediJoyee.. this. hut from zero 10 12 reportable injuiy does say 40 points correct. 3UQTIi4i) points stays on the etnployee's record for 2naunths al'Le I believe it is a copy of the BNSF PEPA policy. ould you agree that that's the policy that as in effect at the t one of this incident? \I R. ( iR,WV: Objection. Calls br speculation. Q And 11 IX 19 22 23 24 25 9 It) 22 23 24 25 A erc ..t.inlis aic-elven. correct'.' Okay. Q All right. You agree with that because -MR. (iRAFF: Objection. Foundation. A I don't -- I don't remember. It's been so long since 9 (Pages 30 to 3 Merrill Corporation 877-489-0367 www.merrillcorp.com/law JEFFREY BECK 06.2013 I'itc .;4 I 2 3 4 5 6 7 S 6 sure what Ii tie we're ta I kinu about. I7 MR. JUNGBAUER: Top. tirst line. A /.ero through -- Ihe I inc tero through I 2. yes. a reportat)Ie inui'y is t p0i A non-rcportaltle mntIiy is tivc Q So for an employee -. ExTe me. Why did I3NSF gi I I I9 ..() 21 22 2. 24 MR. (.RAFF: It's vague. Also I don't know w ho nianagement persons we're re6.rring to. You can go abs'ad and 9 answer. Mr. Beck. 10 Q Go ahead and answer. I will eet to it I nints would not ttave a b'eTiiiig on the A 'c1.11u I investication. I. So you c aim. I7 IS IR. iRAEFame tbjeetions. Tack or t'oundation. Speculation. i\ I -- I don't 8 16 14 kn&dOcEIiiPPI index get sent out to manage - - to 7 Q II' it's a reportable niury. an employee, a lYE employee would get 40 points. If it's non-repoilable. they get flve points, is that true, Mr. Beck! MR. (iRAFF: Sante objection. I just want to make 13 A 4 And then the next line, injury llon-re1)uItah!e is live points. Correct? A Yes. lhat's whmt this says. had other testimony. I am talk trig about only the assessment nt points. Yes. I coukliiavc looked it up. managing people betre an investigation for consideration" k4nIu; MR. CRAFF: Objection. VaQue. We're still just 9 talking about the rero to I 2 line. Is that correct? I)) MR. .IUNGBAUER: Counsel, the zero to 12, we've I I 2 Q We have the testimony. What I am just showing you is two things here. 40j,ommits is 10k report 8 12 P.isc 36 I have looked at one ni these. I wasn't sure whether - - if-ii that's what the zero to I 2 meant. I didn't know it ii meant -- 14 IS 16 . .vMK.(iRAFF: Objection. Argumentative. l ct lie ask it this way, investigations by -- as to whether or not 'omneone's investigated br certain allege :1 rule i otat tons is o t'ten the discretionary call by rita ilagenieiu - im MR. ('tRAIl: ()biection. Vague. Calls lr 19 2)) petuIation. \ 2I ')') 'lhuciu are a nu uther ob' lmctors that would play in an iuvcU ation was oiti to be d or ilot. employees that TYE employees such as Ms. Wallis 40 points fo reporting an injury 1l it's ERA if it's reportable and only 24 , one of Q ..\uid one or more of those factors may involve some disereticsi on thi i'eitoiiitsifit'si1ticportable? Why the djstiiietion',,,j part o I' niattage merit persons mite I uidm ng you as to whethe 25 or tot Page 35 2 3 4 MR. GRAFF: Objection. Calls t'or speculation. I ack of iouiida Ac answer that question. I -- I don't know hat the thought pioccsb.ehm4 ii 1 2 Q Well. you were the -- one of the top people lit safety in the whole Northwest I )ivisioii -- or excuse me -- the whole ( 7 Seattle area, correct? 7 8 ''I was a senior leader on the Northwest Division, yes. 0 tO IJ .that- eorreL l3 re' 14 I5 16 I7 IS 19 20 2I - It) I I 2 14 IS 25 Q Yeah i ncoinplete hypothetical. ('orrect'! MR. (iRAFF: Sante objections. Q You can answer. A Please testate the question. Q Q IS 22 23 24 25 Yes. Ismi'i it true that whenever uu incident occurt whether thete'rsonal injury or not, niaers atBN F inc ludit yourself are -- ate given a flictual situation, and tlieti you amid/or other managers decide what, if any. iuIe It) chi ' ic individtma vith. And there are some, as you s: 11(1. ituinher o c orstiat you canjiLwhen makjnt deciston. correct? MR. GRAFF: Same objections. Compound. 6 I7 ,ef'ore you decided whether or not you were going to charge he - 19 with any rules violations or .- You knew that what her PPI 2t) cx w 2I 24 23 S 13 MR. GRAFF: Objection. Vague. Calls foi speculation. lack ol' lnindation. Q You can answer. A I guess I don't understand he question. QWclt1irMs: \VallissiLuatie intt-it-tnuc that A No. I did not know what her PPI index was. Q Could you look that tip'! A Could I look it tip? 22 S 9 Q Isn't it true whenever an accident or injurY would occur that the P P1 or the personal per lti'inance index poi mits on ni employee would be sent out to management leaders t'om' their MR. GRAIl: Same objections. Plus it's an 3 4 6 5 you choose under the lietual sttoitmon to call iii iuIvesti2i or not bar an mndividstal euitployee'! A 1 can answer l'or mysel!'. When I decide or when t %tii making a decision whether an investigation was to be lid d, it was based on a number ot' lictors. PPI points was not one ot them. Q !smi't it true that there is discretion for BNSF managing persons such as yourself iii whether to call an investigation on an individual and/or what types ot'diseil: line, i I' any, to assess against that individual'? MR (RAFF: Objection. Vague. Calls -- Fxeu'Sc 10 (Pages 34 to 37) Merrill ('orporatmon .77-489-0367 mnerrmllcorp.coin/Iaw JEFFREY BECK 9/6/2013 Pig, 40 P;i I 2 3 4 5 me. Vague. Calls for speculation. Lack ot' lounda lion, and rnri''ihe person whop (' the facts were t'or the investigation you know, what -I hci'e'sj ei'e's a -- there's ii mi of tuetom's that won Id ny into t iat. Q And -- and one ol' the l'aetors in whether or nut to even hold aim investigation again can include the employee's personal record or work record and ii istoly with the company, makes the decision on whether or not to char2e an individuiti '' i th an al kued violation ot in es and"oi' the pei'soi t ultinialeir decides whether to give discipline or what type discipline to an emplclvee in such a situation. There's discretion of both lungs. eoi'recL'? A There is -MR. GRAFF: Same objections. A There is discretion on whether or not to hold the investigation based on the 6icts presented. And -- ()nee an investication is held, there's a number of Ilictors that play into the discipline including our PEPA policy, the employee's )ast history. So there are 6tetors. Yes, Aiil based on those foctoi's including the employee's past history, you and/or other officers or manager' of BNSF can decide what. it' any. for instance. diseiplitie to assess against an individual'? MR. (RAFF: Sante ohjectioiis. A I -- there would -- Based on the litets thai were involved if von had an investigation, based on the facts that 7 CoiTect' 9 hypothetical. its coiiipotiiid. Do you utiderstand the question'? C) es. And there is -- there would be discretion for A the manager. -, yot4sa-n 6 7 $ 9 10 Ii 12 13 14 15 16 17 IS 19 20 2I 22 23 24 25 4 Objection. Vague. Incomplete A In -- in my opinion I would -- I shouldn't say my the employee's past record when decklinii 10 opituomi. I would use 12 'Ofl IflVcsiitnIIioII%, I3 C) ..4n other words. whether to I'e i1'Tmi ;oi'rect. 14 101'? - ' And 'or you also would use it, the eflll)loyee's past C) histoi'v or record with the company in deciding what, if any '17 discipline to assess ml' there is -8 MR. GRAFF: Same objection. Same objection. l 16 NxcLmse me. A 20 21 It's a t'actor -- It'sat'acior in the dccision, yes. "1 Q Okav. Because isn't it true that for thiletent jute 23 24 25 violations or rules at 13N5F there is n :i utt iepmthiTtv f each and every nile: k there'.' A -- I don't underslattd the question. I P;)c 39 Pige4t caine out of the investigation would be how the discipline vc,nl, he determined When you say discretion, n would all he based on the tilcis ol the investiatton. . \\'cll. von said thu'iiiIi a little while aco under oath 4 C) that the employee's employment history or -- or what did you 5 use tile term, the employee's i'ccord? What is also (, considered'? 7 .A iheir past lustory. their past i'eoi'd, it can h_' 8 considered. I'm sorry'? 9 With the company? 10 C) Q Well. for instance, this nile of' allegedly not being 'ortlwomin about a personal inlurv. there's no specific I ) 6 7 S 9 10 II 12 14 15 A Yes. II l'hc cmplovcc's past history past record with the C) company can he considered by an ollicial in decidini '. hat. it any. discipline to assess and/or other discretionai' dun? 'liieii' -- thcii' past histoi'v or record v tb the 18 company, their work history would be considered as a tietoi 19 one o I' the lietors when decidine ii' -- II' the -- you know , what 20 -- what the outcome ot the investigation won 1(1 he -- what discipline it would he. 21 Or ecn wliethei ni not to hold an investigation under C) 23 a certain sct O11i1CL, ciieCt? 24 25 A I hat wouli tall under the discretion ofthnianaer prior to. And '- and il1c'ic fiL'i': 4 - \lR. (IRAFF: ()bjcction. Vague. (.oinponnd. 16 17 13 that play iiiioioo, punishment that BNS1 has listed with that rule: is there'.' lt'q' .1 icre1ionary on the part 01' the ollicial based 'on the employee's record, history and the focts ol' the invest igat (In'? MR tr;R.AFF: (')bjcction. \'aguc A 1 here is-- there's nothmn written tight next to th tn Ic that say'S t li:i t it on violate hits, tins is going to he 'ome. 0 t1iifllletiTi'11it-l5fl't it true that for -'-_ different rule violations that sometimes some employees can he treated di l'l rentl v than other employees with the same alleged t . iii Ic vio lai ion depending on the focts o I' the situation and tie ciup 'ce's history and record with the company'? MR. (IRA ' 16 I7 IS - : Obteetion. viigm. aIls br specu ltd mull. I neomiipkie hypothet cal A Each cmimp loyce is heated -- lii -- ill lily Opinion -- In I 9 my case each employee is treated as an individual Part o 'tic 20 things that -- that I would look at would hc therr past record. 21 22 23 24 25 you k ituw. their -- how -- how they're terli1r'I1l rig and -- and ti'ii that infonnatiomi to help us help decide whether theme's an inveslistation. I tnt at the same time that di i'I'ei'cnt rules -- II you have a rule that, for instance. they're not-slip)oset'to. read a n jper.,whiIe.workimig. that nile there, that violatiWl II (Pages 38 to4I) !vlenilt ('orporaliun 877-489-0367 w ww. merril lcorp.com/law ,IFFFRF.Y FIF.CK 9/6/2(113 Paite 41 P;ige 4 I 2 3 4 5 6 7 8 9 tO II 12 13 14 IS 16 I7 18 I9 20 21 ol that rule there is ii its -- it its habitual arid it happens titany, mmiv times. then ii's probably going to iestiti ii an investigation and possible disetpline.iTh'c thine, then you're probably not going to take thai to investigation. Q \VelI, h,r iiitanee, isn't it tniu that individuals who have multiple .evcl S -- If' you have a level S on yott record and it's still on your record, that a second I .evel S could -- could result in a dismissal ti't,iii the employee on dci' the PEPA policy i' 7 . I,evel S instance could restilt iii dismissal -- 8 A, Conducts 9 Q Itt A 'Coiiduct Q Like '.vhal" -- br an employee'? 13 A It's -- It '.'.ould have to be investigated, but under-- tinder GC(.)RE 16 conduct, anything that falls unde 14 that--that ruk, 12 15 i IS Q in addition to conduct when sittlations where you violate main line authority with a locomotive, go out.oiit& a ilinin line, cross-a red hlock'isn't that one otthc sev 'deadly sins'ibtlie -- flr TYF. employees? MR. (JRAI'l': (.)hjection. Vagtie. 19 .'\ red block violation does not tall into the seVW' 2 2 deadl 22 red block authority vioiatioii by a locomotive a sei'ious -- potentially ery serious incident'' 23 24 25 - - Wh9tlofsiiile level -- What type ofsinule 6 16 ve MR. (iltAl"l': Same objection. Plus asked and i cii alt a dcpcndin upon what the rules violation would -- coo kI result in -- in dismissal. assume that that's one wc'i'c lookiii at here. You understand that Ms. Watlis turned in a personal injury report as a result ot her accident, concet'? A Yes, sir. She ilixed an injury report I ott a yard ii . ter thx. Q Okay. But she was -- she gi'. en a Level S 25 cii ipiuvee to termination. correct'? I lie II 24 23 3 MR. (il(Al"l': Objection. Vague as to time. A 1 believe you at cori,i. Q Okay. And s crc ti) ing to4igure out in thu. case svheiliei' or.iiotM. WaLi' d11L)u11. you know. were lre.ite equally and hiirL..bJjw EtNSI 'iv'in. I would like OLI 10 deterred as a reU1t ofiIour investiiation or the invt"ttitialitm that you approved 0 her. correct'. .\ She was ussessed a l.cl S $ti da's ieenrdsuspcusi4n. 22 I 2 eight lcaiily dcc is ions, no. -- ise rne1' .. A Yes. Q And ii' an employee. l'r instance, if Ms. Wallis had i'lL5 4S ['age 4. I Q Now, if she were to get a second Level S within a I 2 Certain period o I' t I IUC a 11cr t hat, usii't it true she coo I 1t have 2 3 been subject to not only discipline 1)111 being tired'.1 3 4 MR. (iRAFF: (I)hjcction. Calls t'oi' speculation. 4 Same objection. I .iick -- Calls br speculation. Incomplete 5 6 hypothetical. 7 A Based on your-- based on your statement belore about the PEPA policy, if she had received a secotid level S or second S 9 30 day level S record suspension. yes. it would be posstht I (I but that would be driven by the Cmp1o)e's hehavir. ,Slic 5 6 7 8 9 it) ii 2 I3 4 would have had to have done somethtn'Q. Q Well. it site -- if site had supposedly a Level S. whatever it is. and the company gives her a I .evel S. the bict that she's had one Level S within a certain I)crio(l of titite I correct? 17 20 21 22 23 24 25 A something to earn the second Level S4 Q All ne lit. Well, hut it's -- but once 'sou have Qot a I .evel S on your record, you have got that mark hanging on your record for a period of time during which a second Level S could result in termination, whereas a second incident all by itself without a prior Level S on your record would not subject the It' she adni itted fault? 'I'hat wou Id be part of t he alternative handling. di set l imied at till, correct'? I7 19 A I9 4 16 MR. (iRAFF: same objection. Correct But she would have had to have d Q IS 13 I5 18 MR. GRAFF: Same OI'IICCIIOOS. Calls for speculation. Incomplete hypothetical. A In that particular case she also could have been given alternative handling. Q Aiid that's what I am getting at. The second level S. the -- whether or not an employee in an incident where yotir locomotive is going out onto a ivaitt line which Aintraek or tht sounder could nperate on in the Seattle area, that BNS1' nlanagelnent has the di scietioii tinder its rules in that situati iii to either give a Level S or even lire the employee ui to allu'.'. the employee to have alternative liatidling and not be 12 under the PlPi\ policy could have subjected her to being bred because 01' two Level S's within a certain period of time. 15 taken -- allowed her locomotive to violate main line tiuilioritv and gone out onto the ma iii Iii te with a locoui t live with in a period ol' time and tiller her incident, she could have been -she would have gotten -- she could have gotteii a level S and thcreliire been tired, correct? 1(1 MR. GRAI:I:: Same objections. Vague. 20 21 22 23 24 25 A That woukl,l depend oii the situation. ,Q And '.'. hat do yoti mc:i ii by t lie sit tia lion'? Does that depend agai ii nut only on t lie facts bti t ott the employee's history and record with the company? A l'hose would he factors that would play into it. 12 (Pages 42 to 45) Merrill C. orporation 877-489-0367 www.merrilleorp.com/law JEFFREY RICK 9/6/2013 l'j Pag,. 4ô yes. Q 4 5 All right. So can you tell mc why -- Isn't it Lrue 2 that Sue Dull was also given a level S 3(1 clay deterred as a result of when she admitted fault for causing injury to Ms. Wallis, correct? 5 MR. IRAI:F: Objection. Vague. Mischaraeteri,e; 6 - the evidence. S I I What did Ms. Walli get a Iternat ive handling far in the original incident? A I would have to review it far sure, hut I believe that Ms. Wall is got alternative handling for the original I2 inc ideflLI'rn sof?".' It) '" -''- iii lieu of iivcstigatioti was -- was to he constikied under the terms ot the S:mltv Summit A ''eenseaaturebd. As ETibit ow. the only -- isn't it trme under this Safety Summit Agt'eeuieiii liat the only way Ms. Walli'. coLlld qtialitv for alternative handling would be it'she admitted linilt or responsibility far the alleged rule violation. - . '4 9 tO A tinder oura lierna us e handi imig agreement. correct. i'o the -- hdiie tEe 'Dkav. investigation ot' Ms. \Vah lis md'or Ms. Dii ii' with regard to the I 12 inc ideit 1 w tiei-e the tiI ins -- where you had an operating 'ute heiti a viol pied and the -- tile Ira in being operated by Ms. L)ul'I I wint to take ii back. I want to go back. What did' Ms. r)iiliget aket'native handling fbi' in the original I4 olIidcs with the ,ithci trani and Ms. Watlis ,tunips ot't' her--' ID tneidenl'1 15 16 16 I8 A I believe Ms. l)utt got alternative handling far tli original incident. And she signed a Level S 30 day record suspeilsiou far failure to be lbi'theomiutg oii the incident that her engine betbre the llision. in that sirnation M Duff was iIkiwed to get alternative handling because she admitted I9 resulted in an mt tiry . 19 I 4 17 2() 21 22 23 24 25 Q Okay. So she got a Level S ku the-- for the S 9 ho 12 13 4 15 17 I 20 MR. (JRAFF: Objection. Argumentative. (.ompound. isked incI answered. 'A---! -- I believe voirure corrcl.i. () All righi_ And so-- so Ms. l)uit' has a -- a -- a -- 7 IS supposed failure to be forthcoming. but she also was granted 21 22 a Iteniat i ye hai idling far the incident ol viola ti i ig th 23 operating rule of not slopptng the locomotive that caused 24 actually a collision between hei U ai it and a staiidi ng set uI locomotives that day, correct? I',li s i th i'egaid Ut he p -- her incident. Is that correct! MR. GRAFF: I'm going to object to the extcnt it's askini the witness to talk about an exhibit that's not i il front of Itiiii or not ill tioiit of counsel, 11 Y0U'l1 01nt Us to - responsibility, correct? A Yes. She admitted responsibility. Q Now. hut -- and Lhis -- t Ic only way that Ms. \Vallis could have 2otten th sante alternative handlina for that sante incident would be il'Ms. Wallis were to admit that she was responsible far the incident -- far the accident, correct' A It uii the Ilivcstlgation on -MR. GRAFF: Asked md imnsn ered. You can o ahead anit aiisw ci, Mr Beck. 4') 4 A But the investigation -- .11 JN(il tAt) ER: I am talk nc about how --- on Ms. Wallis was cneclIcsl. Q Well, let's 2et there lust. You said -- I he dociiinctit here says that on the 23rd of Fcbniary, 2009. thai Ms Wallis was supposedly nflred alternative handli nc A BuiI--l-I he only way she -- Isn't it true the only way Q she would get alternative handling is if' she actually admitted fault or responsi hit nv List like Ms. I )uti did, correct'! MR. (I R.'\ IF: ( )h ject ion to the extent it ntischai'aeterizes the document. Lack of tbundation. if you 3.'" A 4 She got a Itcinat ive handling because she ad liii ned Itil t fbi' ) that incident. And I INS I' clal nis that on l'ehruziry 23rd ot' 2000 -- on February 23rd ot I bciicvc it's 2010 that -- No. I XcLISe me. February 23rd of 2009 that Ms. Wa Iii s was noti lei K by cciii tied letter that -- that tile alternative ha ndl i itg was 9 iios being ollered to her br the lirst time 4'. I ft I 12 I3 14 the exhibit. liii happy to -(Exhibit 26vas previously waiked for identification. Q It's Exhibit -- Ixhibit 26. Would you look at I5 Exhibit 26 please? A I h-huh. Q I would ask you to go to the second page of Exhibit 26 and take a look at that. ( )n 2-23-09. sccond paragraph it 18 understand tile quest ion, you can go ahead and answer. Mr. Beck. A As I know it with our alternative ha ii dii rig there were 19 two crew incinbei's involved in this incident. ()ne crew incinbe took respimsibi lity. admitted that she was at fault and didn't stop the locomotive 'l'hcrcfaic, the investigation on Ms. Wallis was cancelled. She WOLildn't have had to ask far 20 altct'nat ivc haimdl iit 21 due to Ms. I )u Ii' taking responsibility far her Part in the 24 Adttionally alternative handling and -- and the available tlierctbrc was ievised fbi' .Ieanette \ViIlis r 24 25 app Ii cable collective bargaining agreement a I terna tis e ha nil It 25 () Well. why don't you read the paragraph in Exhibit 26 list betbre that on 2-23-09. Read hat whole Pam'i'aPlt Out loud and let's see s'hat it says. 6 17 IS 19 2() 2I 22_lclitionaliy. iWuld_y&'tu_rii14hal llease? 23 A -. 16 I7 -------- because the invest iQat ion l'as cancel led - 13 (Pages 46 to 49) v1ct'rill Corporation 877-489-0367 www. mci'ri I lcorp.coiu/law .IFFFRFY BECK 9'6'20t3 Pig, I 2 3 4 5 ( 7 a I2 3 l4 l7r"\ A Jeanette \VaItic'aiiotiticd by cei'tilied care of Wil ham in nubziuer at -. ilia I Susan )u Il' requested Iii m was granted alternative handling. On account oiMs. Dull accepting responsibility hr her actions in this incident and resulting injury that occurred on 11-16-08 as a result -- as a result of liii lute to stop Imivement when shoving into 'rack 2 want someone 10 -- Well, as -- as the -- one of the PeoPle iii charge of' safety in Seattle, why didn't you continue and have Ms. L)ul'l' lest il'y as a witness and still hold that investigation so all of the the ts could have come out'! A ihe -- One, we -- we had as much information as we 10 8 11 ot' the time that this note says on 2-23-09. Duff was still scheduled to appear as a witness in the investigation oiwhat happened in the collision against Ms. Wallis. correct? 12 MR. (RAIT: Objection. Calls hr speculation. Q You can answer, A I believe -- I believe that's what it - Yes. I 19 believe you're ctigc 2fl Okay. So -- And here's what I am gcttin.tlte 23 Q Well. if' you're the head of safety, why would you 7 Q Okay. ?'op. That documncni'i'ighi thcrc says that 18 22 -I alternative handling situation allects people with personal injuries diftrentIy than PeoPle without personal injuries for the same nile viuiatLon Would you.agiee with that'! could at the time. 'Ihyo. Ibcliey there \VaS a i'estaining order that you had filed against the I3NSF' so Lhaj_._W,allis 14 could not paiticipate in any tyl)e of investigation. And we -15 and, v c cancelled that tuveslIgatloil. 16 e ' Well, so t'voti'ie truly Iokingfactssa 17 you con look at what the i'oot causes ol' the incident were, liv IS wouldn't you want to hear all of' Ms. Duff's testimony widet 13 19 (I " 21 ANo. 24 25 Q Okay. What -- If-- II' Ms. - When Ms. I )uff admits 25 S 6 7 responsibility br causing the collisioim. if she has no pending pe'ma I injury cIa ni. she doesn't gi e up anything w i lIt regard to hci' personal intury claim because she doesn't have one, correct'! MR. (.iRAFF: Objection. Vague. Incomplete hypothetical. Cal Is lhr speculation. Q g A 9 ilimit' Ii) 12 14 5 l& 17 oath to see whether or not there was an equipment pi'oblemn. a brake problem ui just a rules violation h' Ms. Dull' that cause he nicmdetj A 23 24 4 MR. (. RAIl: Objection. Argumentative. Speculation and lack of' thundation. A I -- I - I don't have any idea. 6 a 11cr I )u It' had req uested and was given alternative handl log as Lack of t'oundat ion. they're all -- they're at t'iiiilt or not just to get out ol'thc investigation iii which they could be tired? I 4 9 17 21 'I at Bahiner Yard. Ms. Dull was named to appear as a Witness u I he investigation I N-O-29 -- or I'm sorry -- I 293 instead of principal. 15 16 Page SI) Ikeause we-got tha -MR. (iRAFF: Objection. Hold on. Hold on, Mr. Beck. Objection. Its eompotmnd. Calls for speculation, lack of loundatioti. Argumentative. Q 'Vini eaii answer. A e goi all ili.it inlurivai.wu hunt Ms. Diii! alter w gave her altcmiiative hiaiidliiig. She -- Ii '' s ciii ilwcnigh a ad tiit ked to her in length about the tile iikn I and w ha I happened. Q You can an-' \Vhere is the written request -- hxcimse me. Did you participate in talking to M Dutial'tcr she was given alternative handling where you got all this information from Yes. She did not have a personal injury claim, euueet.- her? Okay. But Ms. Wallis did have a personal injury claim. So 'hat good is it front Ms. Wallis's point of view when someone says, oh, we will -- we will give you altci'native handling but you have to adni it you're at Ihul t lhr t he incident I low does that --'Why should sIte giVe UI) her ,'iii judo get aiteniative humuillnQ? ' MR (RAFF:"ctioii. Compound. Vague. Assumes lhcts not in evidence. A Did I -- I -- No. 1 did not participate. IS I6 7 Q Did you ever sec any nienmos of anyone that did talk itt her and interview her'.' A 1 don't remember seeing any memos, hut I - I do renmeitiber hmavmni a eoiiversUt1 with I believe it was Dan I'erQuson and Michael Wimber who did have the conversation wi IL her ttii'ough the ohteriiative hand Ii ng t1 I ecs long with her local cha im'man. and jusi a con 'ersauon about what came out ob' that -. that (IISCUSSiOi1. Ut It) Q You cait answer. A 1 guess in my mind, and I don't know how ttns,wei I) Q Now. Ms. Dul't' has recently testified that after this 21) this question. In my mimid whether she admitted fault to"n 20 2I i net dcii t has not hi tic to d wit Ii whether she has a personal 21 22 23 iiijiiry claim. 24 first 30 day suspension. Jo day -- level S 30 day suspension that she did have another incident in which she allowed a Ioeoinot i ye to violate mai a Ii ic authority and that she was given all ci'nati ye ha idling. Are you aware ot' that'! A Vacucly. I -- I .. I don't i'emiiember all the "is in !'ornlat ion about ii I 24 25 whether or not this whole progriu a Q Well, tb vi iii k nt amid policy is put togethet' so that people with peioiial injuries either give up their claim by essentially savinc 23 14 (Pages 50 to 53) Mc'rrmll Corporation (V. 7 www.nierrillcorp.com/law JEFFREY BECK 9/6/20 13 P.iit. 54 P;iite 5b 2 Q Well, did you participate in any is ay in the -- in a llowina hei to act at tenlali ye hai idtiiia for a second I eve I 3 S'? 3 4 4 7 MR. ('iRAFF: ( )hteetion. Assumes tacts lint iii ci idence. Lack of fnindat ion. Calls t'r spec ula lion Q Did -- Did you ParticiPate in the decision of I3NSF to allow Ms. Dtili to take alternat ii e haiidliuirathet titan he -- 8 have an investigation intO why she ahlüi1ocomotl\e I' 8 9 violate maui line authority? MR. (;RAFF: Sante object 9 I S 6 10 II 12 I3 14 15 16 17 IS I Assumes hicts not in ci idenee. A I don't rccalI Is -. is this -- is that the type of discretion that BNSF managers has e that when someone like Sue L)uti is Ito admit' 'that she caused one accident and a collision, then has anol lti sit nation that you testified pres iously is a serious incident ofalIowiii a locomotive to violate main line authority, who would have the discretion, if anyone. to alloss her to only take alteniative handling fin such an event, the second event? Q I 2 5 6 hO II to yost'.' 12 23 24 MR. GRAFF: Objection. Inconiplete hypothetical Vague. Assumes facts not in evidence. A It means that the -- the FRA deemed II tat it was a red signal vtolation thait fell within the criteria of dc-certification. And we made the decision or -- or the decision ivas made to ranI her alternative handling. Aftet hearinu the .- what the itieideiit was, what the characteristics ot' it were. hearinc the artzttittents ti'otn her local cltainnan. she was granted alternalive handling by PEPA. Q Where ate the recoids far that -- what the supposed evidence wais that UNS1 relied ott or considered its giving alteinative handl inc to Sue 1)uti' far the second incident where the IRA says they're taking her license away far a period of 25 ttmne! 13 I4 IS 16 17 I8 I9 20 21 Assumes filets not in evidence. A Ihe -. 01' course. he investigation notice siottid have been sent out on Ms. Dut't'onginallv. There would have been conversations that ins olved her local chainnan. Would has e piobablv invol veil mvset I' all the way up to 1)img Jones and I al't 2I 24 5 22 I I Relations. AnJ hat would have been in a -- in a discussion. 2 4 M I0 II 12 I3 II IS to 17 I -- I do not -- I do not recall all o I' the c haractetist les ol this red board violation. Did she just get into an IJ or an insulated joint to where it dropped a red sigita I in li'ont nt another train or didn't, or just got into the crossover or the switch. I don't knoss I don't remember. Q Well, something as setiotts as a main line authority violation, would there le any kind of records or notations h tIme company to doeturtent whether the company looked liii OF mnvtigated Ms. I )ull for thait? A Oh. yeah. lhcre would Itave beemi I R, documentation. There would have been dc-certification tir her hostler license if it so warranted What would that -- If-- If-- It' FRA cic-cci'tit'icd her hostler license, what -- svou Id that be it serious itic t dent if that were to occur? .\ SIte would have lost her -- MR. (RAFF: (Thjcclion. Vague. 1$ 2 5 in lorniat ion on thai t. Q So yost ate saving that in a sttua t 'n. the second sltttatioti perintts Ms. Dull is ho hmts not turned in mm personim I 7 II in jtit'v report, she now -- she's already caused one accident in ii hich Ms. Wail is was tiipuied mind she got alteritative hatidhing far that. Now she's ot atiomhier iticident where the FRA tltttik.s it's serious enoith to suspend bet license. I ii 'ni a safety I2 point of view, why ivould I3NSF give her alternative liandI tim ii' I3 that second si Luattioti'! 14 MR. (:aAFF: Objection. Assumes facts not itt evidence, lack ni fauitdattion. Calls far speculation, and l's 8 9 hO I5 16 I7 IS 20 20 2I could tint Ii as e opeiaietl a loco 2I 22 Q Well. it' FR.\ revics ond incident on Ms. I )tt Ii believes it's serious enough to cause a farfeiture ot' her I tceitse to operate a locomotive tot a period oh' lime. why would I NS F. a RN SF manaoer era it her alternative ha nil Ii nu far the 2$ 24 25 A iii ye. MR. GRAFF: Obiection. Lack ot' toundation. Q Where -- where would such inlornmtion be'! MR. GRAIl:: Same obtection. A I don't know that there ivoulcl be any -- any written 6 Sh wnuld base lost her license far a period of time thai they deemed sufficient. So during that period ot'tiine slt 19 " Sits 1)OSSihlC' Q I ant going to ask you now to assume that the thcts arc in thits case that were going Lu prove to the jttry that the FRA did suspend her license far a while. What does that meat MR. URAFF: Objection. Compound. Vagtte. 23 MR. (RAFF: Objection. Calls toi speculation. Lack ol' Iotindai in In. U6i1'l kn that the FRA took her license away. I 7 20 22 sartac iflci(leflI ii the FRi thinks it's serious enotigh to take her license away? A I don't know that the -- I9 22 2$ 24 25 beeit asked and answered. A I iton't kntmw whati the time l'ianie was from the first incident to the second incident. That would platy a factor wtth allernatis e hztndh mo. Ihere was discussions made. I -- I'm stile that tltete ivats discussions around what -. what the tact'. is crc far the second inc idenL And all I can tell OU is it fell strider the criteria l'or alternative haiidl i rig. Q I-low do you know that? i\ I kcattse she was given alternative handling. (Exhibit 122 was previously marked for identification.) I IS (Pages 54 to 57) Merrill ('ot'porat ion 877-489-0367 www.niciriltcorp.com/lasv JEFFREY BECK 9162013 Page oil C xhihi.P Q It' you Io Do you see that firs page flu L. sir'. A Yes, sir. 4 S 6 7 8 9 it) 2 II '5 16 17 18 I') 2() 21 1') 23 24 25 lat out please I 2 3 Q On the -- There's four bullet points under the third paracraph hich says first the rules violation must qualifTor 4 a IterTlativc !iandlin The a Iteinative ha till LII aci eci itents list the violations that IJO not quali fv for a lieritat i' e hand Ii ng. 6 7 -- rule solution WaS SO -- Was so serious that -that ii eon Id -- that it cou ki potent tally involve Ii f They include -- Would you i'cad the third item there in that bullet Point? A Rule violatioii i'cstiltiit itt li! tineatering or career ending personal injury to uiyone. S th iCalen ing till ury'? 9 MR. (IRAFF: Objection. Assumes facts not in evidence. Compound. A Can you testate ili e uestion please. Q Yes. You previously just testified a moment or two ago that one ol' the reasons the IRA has the violation of the main line authority rule as a de-eertitiable event for a person with a license to move a locomotive is because it could cause -- it had the I)otential t'or causing lit threatening 1 3 5 6 7 S 9 It) II 12 13 4 15 16 17 IS 19 2() 21 22 23 24 25 It) I 12 didn't you -- didn't the record show that the lirst alternative handling that Ms. Dutiwas given with regard to the incident involving Ms. Wall is br causing the ace iden I that -- that that was either career -"itcoiild have been 1if Lliicateiutig.o career ending personal injury to Ms. WaIlis'2 \Vh was she give alternative handling in the lirst iiteideitt ii' this was -- if-lit's not al los ed under tli is document'? MR. (IIRAFF: ()bjcction ('oinpoitnd. A I would -- I would assume because ii didn't meet any one ol the -- either one oltltose Lntell:t. Ii \\as -- e kitew it was not tile threatening and career ending. I believe Wal lis is hack to work now. Q But didn't you earlier say that one of the reasons I. 14 I5 I6 7 18 Q inp Lily to someone, correct'? A II there is another -- It there is sontetiiiiig else 9 2)) 2t 22 23 YCS. Well, hut that's why they don't ever want it to happen because you don't know ii' something else is going to h present. The rule doesn't say it's a violation only ii there is atlother train there; does it'.' Q MR. (iRAFF: Objection. Compound. Calls foi 24 25 SPCetikttiomi. I .ttck ol' foundation. 'i that you were charging Ms. Wallis with an incident is that it could have becu a career ci id u pet silt I in Ui uL the tune tt the incident'.' l)idn't von testi l\ lo that earlier today? Ml. (iR,\FF: ()btection. Mischaiacterizes 4 MR. (iRAFF: Objection. 5 Q All iighi. Now, what's interesting is originally Page 2 instant that Ms. Dii if violated main line authority in her -tiller tier license was suspended. was she under this -- under the alternative handling policy even eligible for alternative hatidl ing if the -- evidence, I believe. A I don't reniemuber saying that. Page 0 I I 2 3 4 5 6 Q Okay. Vcll, we will -- we will go on. We will go in the record and look at that later. But with regard to Ms. Dull's SeCOti(l incident where the ERA pulls her license, you agree that allowing a locomotive to violate utaiti line authorit could result_in life threatening injury to someone 1 there,ms a collision between another traiti and that !oeonintive Would you agree vi th that? A If there is a collision, yes. Q Well, the huid that -- the focI that the rule is so serious and the reason that it's a de-certitiable event by FRi\ regulations is because it does involve the potential of a either life threatening injury to sotneorte, be it the public or an employee to violate ma in line authority. Is that true'? A Ihe potential is thei'e. MR. GRAFF: Objection. (.'omnpound. \ague, A ftc -- 7 8 9 A NO. rite -- the rule siatcs that they ale not to go 1w a red signal entering ihe ma in line or -- or on the ma in line. Q And that (loesn'i -. Is that tIepeiiitni LiOfl whether om not there's another train there or not at tie time? A No. gjts still a potential litóthreatening t to Q '.oineone ii' Ms. Dull' iolaies that main line authority with a locomotive QoiflQ onto a main hue wit lion i a uthori7at ton? MIt. (iRA!-!-: (.)bjeetion. Incomplete I)) it 12 13 I -I IS hypothetical. A If Ms. L)uIi entered -- sveni by a red sigtial and entered the main line, if there is as -- if there is nobody else theme it there is nothiim there, yes. it would still be a violation, and yes. it could he a violation that where the FRA I7 would pull hr license, however, there was no iinniediatc dangc or immediate tlireiii to lile. !'hat would not disqualify her IS t mm hi avi ng or receiving alternative handling. 19 (_) In oilier words. BNSI- in its discretion decided, oh. hased on Ms. Dolt's facts amid her histoiy with the company in 6 20 21 22 tier record ihtit ihe were not going -- ihat BNSF was going to allow alternative handling br this serious rule violation, Q Your answer? A Ihe potential is there, yes. 23 24 correel? 0 25 I tick o I iou id it on A su ume' tue t not in evidence. ()kav. So since the potential was theme iii this MR (iRAFF: Objection. ('aIls for speculation. 16 (Pages 58 to 61) Merrill Corporation 877-489-0367 www,merri llcorp coin/law JEFFREY BECK 9/6/20 13 !'agc (,2 5 lii ny opinion we -- we did grant alternative iianlIi n for Ms. Duff based on the Iietors ol'the ecnt. Q Not just event. You said earlier it's also lici personal record and hi stoty, correct'.' MR. (.iRAFF: Objection Mischaracicrizes the 6 evidence. 7 A Those would be based on the -- the issues arc -- i'm sorry -- the lactors ol the e\eiit. And VCS, 11cr pat 'tory and record would also play into thai tlei 'ii. I am sure. Q Okay. And theim we also had testimony from Ms. Dut that there's not one hut two other events in which that occurred when she was workme and in which a derailment occurred that she has accepted responsibility. Are you aware I 2 3 - 8 9 It) I I 12 13 16 17 A No. again iven alternative handling in two Q And she additional situations ..\re v'avarc tifiliat" In what time frainc' Prior to her being promoted to her current position 20 MR. GRAFF' I'mii just going to make an objection 21 to the extent the question nimscharaeteriies the evidence 18 19 22 23 24 25 MR. GRII:1:: Objection. Argumentative. Q 4 S ('I 14 oat? 15 i'.tae ('4 A A 1) Q Well, let inc ask it this way, what are the tune periods that are relevant loin your point 01' view for an employee like Ms. Dull if you're looking at her other instance 7 S 9 I0 Ii 12 Yotm caii answer the question. I -- I don't have all the inlormat ion as for as how A tltr allah the incidents were. II'-- Most generally with alternative handling. ii-- ii ii -- if it -- ilyoti don't hav any ineidetits within the eat. thejviiuld bail otT and 'kni would he eligible for alternative handling again. Q But ott said you could -- you or other maiiaeers can look at a person's record and history. And, Ilir instance, when someone is considering a third or even a toiiiih alternative ha tid I me, whet her it's a year and one mont It or a year and two mm inths, isn't that the tYpe of ti ing that a inai lager has discretion on as to whether or not to give alternative handlinti for the second, the third and/or the fourth incident alter the orteinal one involving Ms. \Vailis? MR. (1RAFF: Objection. Incomplete hypothetical. 17 ('ails I'or speculation and lack of foundation. I lie witness has IS already testified, Cotitisel, that lie is -- doesn't have all the., 19 focts with respect to these alleged additional incidents 20 involving Ms. Dull. MR. J( INGBAtIF.R: I niove to strike Counsel's 21 'ii colloquy. 23 0 Can you answer the sitmest toll? 24 MR. (3RAI:I:: Same objection. 13 4 IS 6 wh crc lie's been given at terna ii c Ii andi i ni' W liii ire lb e ii iii e A I -- I won 1(1 have iii be able to ii ink -- I would have P.,e 65 Pats 63 I 2 3 4 5 6 7 8 9 Ii) ii 2 13 4 IS 16 17 IS 19 20 2I 22 23 24 25 limits or consideratioims that you or other inanaers would look at in deciding whether she's even eligible? MR. GRAFF: ()btcction. C'oimipouiid. Vague. A Ii -- it would be how close iogeLher these es enis occun'ect, what was involved iii these events, were they -- were mll of these eons jdered serious e cuts. I here ire several I'actoi's that would be invnlvc(l. Q \Vell, when you say serious events, that's wham a level S is, isn't ii, a serious offense'? A Yes. It wotild he a serious oft'ensc. Q And you can get a level S for -- That's the delault 14 to be able to look at the recuid, took at Itci record to see how 'these were. It' they fell off, they would -- You know, ml' they were over a year old in between he alternative handi ings, it's -- it's vety ptisibIe that .sh would lmtive -she c9uld have gotten ntult iple alternative handlings. Q Well, what if you -- hat if you've got biur alternattve hamidlings within a three year period, then there's got to be at least one of' them that's not -- that's -that's -- there are two oft bent that not -- that are less t ha ii a year apart, correct'! A Right. Utit alternative handling, you can get them for different tliiiigs. lit other words, if Ms. r)uff, for instance, had alternative handling liii' an attendance violation, that would ito! look the same as alternative handling -- IS alternative handling for a tlerim i Intent I 3 4 5 6 7 S 9 10 II ' '' for any rule violation unless it's so specified: isn't it? MR. (3RAFF: Objection. Vagtie. A No. The level S is not the default. Q Well, s li;ii -- what lime period'! Does it make a difference it it's over one veai. two years. live 'ears? What time periods are relevatlt -MR. GRAFF: Objection. Vague. Q -- in making a decision on -MR. JIINOBAIJER: Well. but, Counsel, that's why I am asking the quesiion . 1-Ic said it depends on the i mine period In Ms. Dull's situation how iiiueh -- how many times you goilmg let her -- is BNSI-' going to look the other way and give her alternative handling in a one veai. a two year or a iltiec year 20 a I lent: ti ye it: i ndl ing or to.harge them with a -- an 21 investigation th could imtvol e a level S. and m two level 22 S's in the same year within a year's period occurred, that 23 employee could be tired, eoi'rect'! 24 A 'Ihe -- the other lawyer fell oIl'. period'? 25 12 Ii 16 Q So a derailment is much more serious'.' 17 A IS 19 Shotmld he, yes. Q Should be. And whoever is making the decision whether or not to give Ms. I)till'iir any other ettililovee 0 He's tot tin'? 17 (Pages 62 to 65) Merrill ('orporation www.nterrillcorp.com/law 877-489-0367 U .IEFFRFY BECK 9/6/2013 TilE VTDEOC;RAPIIER: his connection 2 3 4 5 6 7 8 9 II) 12 I3 4 15 A MR. JITNGIIAItFR: Wei'c going to take a bicak '-I until he gets hack in. Off the record. 4 TUE VIDEOGRAPIIER: This marks the end 01 tape number one. Going off the record. I'he time now is 11:53 a.m (A break ensued Iloiti 11:53 am to 12:06 am.) 7 THE VIDEOGRAPI-IER: Here hcuins tape number is 8 ot the videotape deposition of' Jeffrey fleck. Were on the 9 record. the lime now is 12:06 p.m. Ill MR. JUNGIIAtJER: Okay. For - We had a technical II problem iii which we had lost counsel for the railroad. id ask 2 the court reporter to read back the question to the witness so 3 thai he can answer it now that counsel is back on line. 14 (1he reporter reads the question.) IS MR. GRAFF: Object. Its compound. lncoiiiplctc 16 I7 8 Jo 20 2I 22 23 C) His conneclion -- He got disconnected. hypothetical. Calls for speculation and lack ol loundat ion. A Depending upon what -- F mean, alternative handling -- 11 you cotikl -- Could you rest tie the qtieslion'? Sure. Sure. 1 will do them in little separate pails. I ilti uk we have already -- Ibis is preliminary. I believe 15 c'\c already -- you have already iestu lied tha ...cvei S's within a calendar year could result in dismis.s 24 1 "ii 25 16 17 18 I') 21) 21 22 23 24 25 Is there any type ol' docu men I. memo, whether in electronic finn or in written flu-ut that tells BNSF officials how to exercise theti discretion mi calling investigations or in assessing discipline for employees based f'or -- based on different rules? ApF. ()Tciioii Lack of fouitdation. \Ve go t trough sonic I raitting us tar us how to ho kI an invcstigattqui. Buit ldun't know ut nit written docuiueiit that ss ould advise us bow tool er discipline or alternative ltaitdltng 1htit\ -- that's -- I don't know of anything. A Q Are thei'e any guidelines. rules for I3NSF officials to help thciii to decide when and how to use discretion in dealing with d tsciplirie and/or Investigations'! MR. (JRAFF: Same objection. A It's -- it's based on -- Iii my ease or in my cxpericttce it been based Oil iil expetiettec, my superviso1s experience and then ii we ha', c a LuLio1 we s ill ask tibur Relations. (I.xhuhtt 61 was previously marked for identification.) Q (.)kay. Would you look at Exhibit 61 please. A I have it. Yes. C) Okay. And iiyou hook at -- Ihese kind olgo from the bottom up. Look at the c-mail from Atithony Boldra to Gai I i Icher. Would you rettd that please'? MR. GRAFF: Give me just a second, Counsel. I pi is: I, I 2 4 S 6 7 8 9 1(1 I 12 3 14 IS 16 17 - boil ii rote ihtit BNSI ot1iei have discretion in whether or not Lu charge tin cmplomt investigation of a possible rule violation oi tnt the v (I) Okay .\uiil iii i employee alternative handtiiw even within a one-year )(1 after a previous Level 5" I )epending upon the situation, they would have the A discretion to QiVC alternative handling if it meant the requirements of the alternative handling policy. - Q And similarly, even it a ii employee is investigated and found to have violated a ole, company oI'lie in Is arc gi 'en latitude in types of discipline that they can assess for -- for rulc.s? -"' 2 3 4 5 6 7 8 9 11) I I2 A l3as I on diflLcreiit types ol iules, there .issome latitude as ar as fr (he non-serious type nilca. yes. talking Q But serious incidents -- Non-serious. about reading the paper or something like that? A 1';ie 6') I Yes. 13 :ipol0glZc. I'm ust ttying to find the coirect exhibit. Okay. I am there. Ihank you. A C )kay. Irom the bottom up from Anthony I lohdra to ( iar Flt, the Ten Walhis -- subject is Jemi Walhis investigation. We -- we should -- We should httve it in time. Kester is line and acnially wanted to look at a waiver. So I have to walk -I have to talk to Reck legal team investigation. Will still go. She moves to witticss mole and Walhis only as a principal. I will keep you inItrnied. I hett from Gary Filcher -Q Stop for a second there. So the person Beck that thit'y're talking about slash legal team, you're the I 3cc k. correct? A Yes. 1 would be the I leek. MR. (.iRAFF: Objection. ('ails for speculation. 14 IS IC' I7 C) I)o you believe that that e-tuail was speaking abottt you in this situation flout Mr. Boklra? A Yes. It was speaking about me. (1)kay. And what are they talking about -- What's he C) But things like dcratliucnt or violating matn line Q au(hont. those are ertous incidents, correct! A They at-c serious incidents that cotild be covered 21) 2I under the PIPA po1 icy or the a Iternat tIe ha id Ii lit! Policy. So 21 22 23 24 if-- And I will just use your tnstanc 01 a red board V violation. I )epending upon the -- the incidence ol' the red 22 board violation, the facts of mIte red board violatioit. it cool (I' 21 A Honestly I don't know what legal team lie's talking ahotit. My guess is lie meaiit I .ahor Relations, but thttt's only 25 qualify fot auitJaaiidliiu. 25 umly sI)eciilat ion. 1 I') 1$ I9 23 talk tug a bout that lie needs to La 1k to you and the legal team! Wlint hcial tenn1 \FR RAi-'i' Same ob,eciton. Ctmlls for juIatiuoui 18 (Pages óóto 69) Merrill ('orporaliomt 877-489-0367 wvw. merri I lcorp.com/law JEFFREY BECK 9162013 ige 71) I 2 1';iie 72 Q Okay. Well iI we go to the next e-mail. again above hat from Gaty Fikhei to Ken Iverson. can you tell tue about izsl tim I one please. - ( 7 8 9 A As inibimatioti Ken on the upcoinine investigations I will give you a call later. Still not -- still not able to connect with Jim Hurlburt. Monttioineiy's office referred inc to him as fir as those ktial exhibits we talked about. I haiiks. 0111CC. ale YOU ale tli.tt I (liii Montgomery was the lawyci iepiesenting BNSI iii Ms. Wailis's II personal i UI urv action? 12 Nit, I \a 1101 I hive you kid anY contact evet with I tim Montgomery a his office in Seattle? 14 l A 6 l7 Yes. 21 22 23 24 25 L 'k of foundation. I do not know. I do know that (Iaiy Filcher was the investig ting ollicer for this particular invesligation. (Exhibit 20 4 5 Q Why would Mr. Montgomery -- or excuse inc. Do von have any idea why Mr. Filcher is talking to Mr. I I unhurt al'tei the Montgoiueiy law otuice retrs to it? MR. GRAFF: Objection. Calls for speculation. i Q Yeah. We'll -- I'll stop you there for a second A 16 I 6 Q A Yes. Q So you know who Toni Montonicrv is? IS S (iaiy. Q Okay. And Moi itoIIICl it) I3 4 pilot boarded the train and then reported the possible intiirv to the yard master who, iii turn. noti lied the t am master. During the iiIIervicv viili the hostler when asked why she did not put all this in lbnnation down on her original statement. she explained that she was advised to be vague or generic in li_statement hut would not say by whom. Ihere was a local chairman iii the cab 01' the incident. Nate McDonald. But when approached Lw Anthony. he stated he did not remember telling her to be vague, just to be honest. Do you want inc to go on? IS 19 20 21 22 24 'S because there'sae ouple ol' things there. I )id you bring il I3NSF ever deterinnicd whether or not Sue Duff told the truth that she actually started to apply the brakes on the locomotive prior to the collision or coupling'? MR. (IRA F1': Objection to the extent it's asking for informal ion that's not his personal knowledge. MR. .lt N(il3A( 31:R: I ant asking did he ever check. A I -- I do not know. I -- I believe theie was a down load taken of the Ioeontoti ye, but I do not -. I wou kI have asked the road foreman engine his expertise. and theit what it went h ' his -- ' s epertism was Q Well. in foci, there veic downloads of all three scomot ive -- locomotives, correct MR. (., J ': tection. It calls for speculation, lack of finnidation liae 71 I Q \Vould you look at Exhibit 16 please? 2 A 3 4 5 6 7 8 9 It) II 12 13 14 5 i'aime 7. the pane from I leek, J elirev I ). A rid w iii 1(1 von read that fir us please, the first pail? 4 A It's vciy possible that all three were downloaded. I 'ust don't remember or know. Q Well, foi whatever reasoil. ou cancelled the -/ in VCsLLgLtioi1 here Nis. Du1' ouId ha e testilied as Lu wha, S oiied. I)id anvomme evei compare hci statements to tite -. A Sure. It's Reck. .IelIrey I). to Doug lones. l)arrell Ness. Anthony Bokira and Bind J. Anderson Wallis incidciii 6 Importance high. Crew was shoving three engines -- three cilgine consist into the track to niake a point ott two other engines. Ihe hostler stated that they were using hand signs per the interview with Anthony Iloidra the next day with her local chairman picseult. and that the hostler lost sight of liii: pilot, at which time by rules the woukThae had to stop the m6vcment, in parentheses. The hostler then stated she moved 8 I have it. Q All rioht. Let's look at the e-mail in the middle of ahii[air klig1Wegan to stop -- the stopping process 7 9 ho II 12 3 14 5 16 when the coupling was made, in parentheses, at two miles pci 17 hour or less by her statement. We do know by the yard n1aster' 18 statement that he heard the joint and looked out the window anc 9 saw the plot on the ground facing the engines looking at the I' 20 joint. At that time we have to assume that the pilot either 20 21 sped oil the engine before the coupling or rode the engine 22 t9jjjoint and iheit stejpe.l oft Then aceordin to the 23 hostler she came -- she cal led the p i lot on (he radio And the pilot stated that she had huii her knee and was walking to t lie head end. ihe hostler then -- the hostler then stated that the 24 25 company that she was, according to voti, at two ni les I'd' hour on lcss by her statements whether or not -- and that she had began tile stoppino process, those two statements you just read to us, did anyone ever check to see whether, in foci, the event recorders on tile locomotives showed. A. whether the stop)ing process was ever started, and II. whether or not they were what the impact speed was? MR. U RA FF: Objection - Compound. Calls for speculation. Lack of toundation. MR. JtJNGIlAt)lR: I will take them one at a tim 1t trvrnQto-make-it quicker. I,) All right. You told us earl men. Mr. I leek, that one of the reasons you needed information is to tind out the i'oot t incident, cori'ec1, catus A Yes. 21 1') Q I )id you at I IN SF ever have anyone do an analysis ol' whether or not Sue Duft lie person that BNSF gave alternative 24 liandl mug to. w tether she told the Un lb at' not in the speeds that she said she "its operating that day? 25 MR. (I RAI F: Objection. Calls for speculation. 19 (Pages 71) to 73) Merrill Corporation 877-489-0367 www.inerrillcorp.com/Iaw JFFFRFY BFCK 9/62013 Page 74 Lack of foundation. A Within the Idiel ilatise hIlildIlne pre and the 3 interview thai was given. I he ioad lineman eni ne would be I lie 4 expert on her operating that locomotive. And the' would have 5 bee s ved in the alternative handlin roe 6 Q So if she (lid not tell the truth, that's another 7. dis ualitication tr a e_ ' tandlin isn't it? MR. (iRAft: Objection. Calls br speculation. 8 9 'Lnck offcnmdatiôlt. incornjtetrhvpthetieeli_.... II) A alternative handling, correct? I 19 8 t) 2 t4 MR. (4RAFF: Saiiie objections. Plus A Maybe my detiiimtion of a statement and your dc6niiioii is tlifterciit My definition would be a statement would be giving us inlormaucu in regards to the incident, not iicessarily does she tia e to write ii down. Q What information do you claim she did not prrtidc -l'uruisli it h\"b Iii 1 Ijnielv Iisliit'ti. ii A \\ c ito hot ki iow ss Iieihci she it dc tlic ciiiiic it the to iii. wheihei she j uniped oil the locunitti is e. si bet her she " lien sl ie jumped oh' the Incounot ive she tel t. whthcr 'dIe 1111 tici knee or somembiiiig on something as she was trying to get off the It 'c 'nlnttVv'. We don't have any of that iii lormnntioii i)CCaUse she (11(1 iliti Q Well, you did -- The i,'li that'Vti just read to M1. Lil4Ehbje@t.on. -- incident'? the (_ourl and .i ury here ii moment ago sUnmlll:irmLed the inlonna iii II MR. (JRAFF: Excuse inc. Sony. Objection. 22 ive argument Its e. What did tic UNSF PCOl)le that looked at iii e event recorded data en ic I tide w th reuard to whether 01 not she was going two miles pci hour or less at the time ol the -. Q Well, it shc -- hut that doesn t mean she has to a sill tenleill or does it? Q () I3 MR. (iRAFF: Same objections 1, to my knowlede. 21) 21 ljjcui and mniurv or somethinil ihal nature. 4 II "Wliliis she would not have been eliuible toi 17 A I believe thai -- that we do require tlieiii to make -C us the inhitrniation tIit surrounds an incident as -- such It) It' she had not told the truth, t heii yes, that would I ji tinder a conduct issue. 14 Ptiiie 76 I lizi I von had tvi thout any additional inlormai ion from Ms. 23 Calls for speculation. I .ack ol' foundation. And it's already Waihs. eoiiot 24 beemi asked and answered, Counsel. A I hat's correct. 1 hat was the information that we i eceived 6oin lIme hostler. 1 don't have that in knmattoii. and I dtt hot k itos 25 Pa 7 I 2 3 4 5 7 8 9 1(1 I Paec 77 Q Okay. Now, and I am going to skip ahead here, if I call. Item number Iwo. s hen you -. you start -. you -- you mad .5 some suggestions about the tvpe of investigation noticcs that should be sent out w lb recard to ci tiier Ms. Wa his and/or Ms. 4 c Duff, correct'? A Yes, I did. 6 Q And would you tell us what item tiumbcr two was with 7 8 regard to Ms. Wallis? 9 A Item number two, tinder the -Q tinder -- It sity Wa1?i'thr fmture. Ii) A Oh. Wal Its for foil uic to burnish the in lorniulioti II p.ioing on in that area. I3 sta lenient for ilit' -- ti the event. Q Okay. Ihai Is 0U1 statciiIcitt 1S tLi the JlistiticIiiioll Iir claiming that she ss as s molating the rule ol' Ihilure to furrnsh infonmitton. Ihitis cited 1 .2.7 directly bclost, correct? Is 17 1$ 19 20 2I 22 23 24 25 A Yes. Its Q Okay. Now. isn't ii true that you were wroni! in your statemetit -. or excuse me. Isii'i it true that I3NSF dues not require in;ured employees such as vIs. Vvallis to provide a statement as to the event? \1R ( iR.\i ( )It;eetion. Vaetii' I Q What about the video camera on the locomotive that 2(1 was run ifltø on the other screen, would that have been able to he downloaded also to see exactly what's coming at it? MR. (JRAFF: Same object ions. A It' it was 1iiiiid at the r1&it dtictittii . correct. 21 don't -tin't riember whether it Wils oF mu. 17 18 MR. RM:l:: Objection. Sorry. Objection to the extent it mischaractcnzcs the -- the tiature of the c-mail. A Yes. We would have had downloads fi'oin the locoiiioi lye, correct () Aild isll'I it hUe that you also had access to three videos from the CliflIClitS tifi the kicoitiotives thai book outside! 15 12 16 Q You can answer. 14 regarding an 1 li ni y as she has 101 III Ii! 15 ill 110 t stippi V a 15 MR. (iRAI-'F: (.)bjection. Assumes tiicls mO in evidence. Calls for speculation. J.ack 01' toundatmon. \ hR. (tR.\ il Saiiie stlspeet ions. Yes. W do have the -- We did have the capability to downitt;iti tile uheos i jowes'er, all those videos would have bee poin(iiig iii a - iii a location Wileic could lot see wlia i was 12 14 () Well, you also md additmomial iilthi'maiioll. You had 1111cc downloads 01 ihe event recorders. coiTeet. for thc ihii'e engines? -- 19 I, 23 24 25 () Did anybody even cheek'? MR. CiItAFF: Same objections. Lack of tOUli(lattoil. Cal is for speculation. A b'Iw road I 'i'eman engines svoti Id have made -- made I 11:11 20 (Pages 74 bo 77) Merrill Corporation 877-489-0367 svwss'.rnerrillcorp.eom/Iaw JEFFREY BECK 9/6/21)13 75 I 2 3 4 5 6 check. He woukl have been the one that pulled the cameras. Q I )o you know of an v docunien t anywhere that says he looked at or considered whether or not the locomotive, the lead I ocomotive on the consist of that was run in to by Ms. I )u Ii's set of engines, whether that had an event recorder -- excuse me -- a video recorder pointed tt ards this accident scene.? MR. (.RAFF: Objection. Vaitte and coinpoutid. 7 7 -- you wanted Ms. -- von recommended that I cited for a violation of Rule 1.7 -- I .2.7 for biilurc 6 lii mmsh in forniation regarding an injury as she has not and will not supply a statcnIcnt as to the event. Are you talking about as' cnt as to the nature of her injuries, or are von talki about a statement as to 10 12 13 recorded. 13 14 Q And someone should have secured that Infonitaimoit and 14 oiven it to you to in esti gate also! I5 9 10 II I5 8 9 information do von imeed immediate Iv from Ms. Wa I his'? 19 21 77 .\ lR. ( RAl'1' Objection. Assumes Ilicts not in evidence and compound A I iced to know whcie she Was mit. %hat slic was doiitg, whether she jumped oi stayed on the locomotives, whether she 23 24 tIl to the ground, whether site hit her -' hit her -- hit aitv body parts before she got oIl the locomotive. I hose are the -- 25 That's the 25 operate by radio sm na Is. I9 21) 21 22 23 Well, go ahead .\iiijcme\ my point. You have IS 24 18 A Q 17 12 20 I7 inischaraeteri,es the nature oh the c-mail. A j 1 he statement of the event, I don't -- got all ol' this mnImat ion in the tu had two utticials out ott the scene vmrtuall imititmedia;ely atlem the incident. You ut down loads from all I hiee locomotives. You got video trout locomotives. You have got access to any of the Voice ct)iliiiittitmetitions. You -- von know that Ms. Wallis -- l'mi 1) Ms. Wallis and horn Sue Dull that Ms. Wallis was riding on an engine and that Ms. I )uli' host sight oh' Ms. Wa Ills. What MR. GRAFF: Objection. Arouinentative. that intormation may have been pulled. I lowever, at the time that they were making these moves. they were woikimm on hand signals. Q But prior to that according to the evidence, isn't it true that Ms. I )u Ii' was also operatIng by rad to sigila Is'! MR. GRAFF: Object to the extent it mischaracteriies testimony. Assumes foets not in evidence A I assume that, yes, sometime durinQ the niQht she did 16 MR. (iRAH: Objection. Insofor as it 7 A I -- I don't recall. Q Do you know whether ui not titcie were any ot the conversations otMs. Duff and/or Ms. Walhis were recorded -over the radio were recorded! A Its-- it's very. vciy possible. yes. they were 8 16 pe of mntormnatiomi that 1 would be hooking for. 79 I Q Do you kno with regard to her operation 01 -- of locotnotives itt violation 3 of radio rules'? MR. GRAFF: Objection. Vague. 4 P.iimi,' 81 hethem she iuimde any violations of ruk' 2 .7 4 A 6 7 S 9 10 11 2 13 I am not aware of tiny S \\ould you also auree that if theme is three -- three 6 locomotives coupled together that Ms. Dull' is controlling. iha 7 the event recorders for all three locomotives should show the 8 same speed and direction of movement when reviewed'! 9 It) A That's out of my area. MR. GRAI:F: Objection. Calls for specimIttion II Sony. 12 A Ihat's all rioht. 13 Q 14 IS A MR. (iRAFF: Go ahead. ihat's out of my area of expertise, but 1 would 14 assume so, yes. I7 Q Okay. And did anyone ever look to see whether or not 17 the three locomotives in the Consist that Ms. Dull was 18 operating, whether the speeds matched up or not'! 19 MR. GRAFE: Objection. Calls For specithution. 20 lack of' fottndatiott. 21 A ihat would IulI under the toad foreman cninnes 22 expertise. And I -- I would assume that those -- that 23 19 21) 21 22 23 24 25 done. Q Why mime you looking for that injr1 what the caus'Ttht incident wits! 16 24 to tind out I teea use -- because that may have played into the I iieidcnt There immimy have beet i sointhin8 that she could hayc done to prevent the incident thi I atit not aware oIl ike ' hen I said cam hici that sLt could have turned the ankle cock, that -that's a possibility that she etitild hia e thone. I hat's -ihats mntomtnation that we could usc when we're loukimi the -- the salety aspect oh this to prevent it or --. nJ't help... sonichodv from not havino this incident happen in thcTtitiii () Hn I hirl mngton Northern Santa Fe ever recommended o trained employee host let's to turn an ankle cock on a locomotiv I' the person operating the etigines is not responding to iInI MR. (iRAl:l:: Objection. lack oh' foundation. 15 16 IS I Calls for speculation. Incomplete hypothetical. A I was. Q You were. Do you know whether or no Ms. Duff amid/c Ms. WahIms were ever trained in that'? MR (IRAFF- Saute objections. I do not know. ts there a rule anywhere that says that CI) loyees should do that to your knowledge, a specific rule that says the train into emergency by operating the -- or by turning an 0 Sn you stated in your own written document here that 25.ane cock on a locomotive? 21 (Pages 781081) Mciii Ii Corporation 877-489-0367 vww.nterril lcorp.com/law .IFFFREY BECK 9/6/2013 Page 8. MR. GRAI:1:: Objection. Compound. - 1 2 PaL'e 54 I I would liaveio lack and look in our air biake at A 2 Irainine rules. I don't know i there is somethino S 4citicaIly mentioned in there or not. 4 5 (Jbi1 20 was previously marked for Kki0tlieation.) 5 6 Q wTTh you took aTmmr20 ilr 6 7 A 8 9 10 I 1 2 IS 14 IS 16 17 I8 19 20 2I 22 23 24 25 1 have it. 7 MR. (1RAFF: Hold on. Sony. I do not have it yet. Okay. I am there. Q See -- What is that document? A I3NSI: Personal lnjur' -- or I'm sorry. ;PcrsonaI Perfonnaiicc Index Systeimy Q So this is part of the record that ISNSF has with 8 9 1(1 It 12 I regard to Ms. Wallis, correct? A When we were using the PPI points. that is correct. It Q So when you -- And isn't it true that you or any (i IS would be the earlier incident of-- that is involved with this knee miury. correct'! A I would assume so. yes. Q Okay. And so she's listed -- PPI. it says 63 over there. Do you see that'? A Yes, sir. Q And so accoiding to he list that we looked at before the chart, she ssjd be according 10 BNSF in red or cimiployce. correct? A I hat is correct. Q Wti did she e1 40 poiiii 1ujccidcii& that she didn't cause to her kneç" X I can't answer that question1 Q \Vlr is -- ssliv would this Exhibit 20 be available for managers at BNSF who have discretion in how to-- in whemhci I charge an employee like Ms. \Valtms or -- or assess di t'ttenm types of discipline. s' by would they label her as a red 01 high risk employee just because he was injured ii' it wasn't hem lault mmd gave her 40 points which l)uts her into the high misk eatcoiy ot' over 47'! oilier manager if they wanted to know about Ms. Wallis to tin 117 out what her work history and her record is. all they got to do 18 is punch itt the intormation. lieu itame and emploYee number a 19 that time, and this informal ton wool d come up to I hem 21) MR. GRAFF: Objection. Vague. 2I MR. ( RAFF ( )hjection. Compound. Calls for A I don't remember whether we could punch this up. I 22 speculation. I ack of foundation. don't leiiieltll)ci it we could ptill this Uj) iii ii we had to have 23 MR. Jt.INGBAIIER: I will (to It one at a -- one at somebody from the sti6ty group pull this up for us. I notice 24 a tune then, C'ounset. that it's got Di Rourke on -- on this particular one. A tid I 25 Ihe P1'! 63 if you siil,tract 40 points from the Q 1'.. N: t'ae know he was a inctuber of our sa6ty department. So lie l)ullc( this -- this particular one up. I just don't remember whether 4 5 Q Okay. Well, on this one. 1h Fihand this one is dated 7-20-09. correct? 4 S 6 A Yes, sir. 6 7 Q And it says under points, would you read what it says 7 8 in there? 9 A Yeah. Ii says, points, injury reportable 40. 1 luman factor nothin. 1'PI 63 ..\tid then underneath there it say. 10 II 2 13 14 N 16 17 I8 19 20 8 injuty non-reportable (Inc. i hiniaii lactor non-reportable 20. And ops test faihires two QW is human factor nou-icixrtabk that she got 20 9 '(I I, 12 '3 lx)intS for. A It would have been -- 14 MR. GRAFF: Objection. Calls for speculation. Lack of foundation. A -- sonic type of ho man lactor non-repoitable derailment or track incident. tO incident involving Ms. \Vatlis's kiicc. diat puts tier down to 2 t'Pt. correct? A fliat's correct. Q And 23 PPI is not a high risk employee at ilia i ii ole for I3NSF: is it? A Correct. MR. (iRAFF: Ohiect to lack of foundation. Q You know -- You know thai 23 W8S 110111 high risk employee back at that time, correct, sir? 'ect. Okay. So tile only thing -- the omil inci.cn at made Ms. Wallis -- labeled her on her employee forms that BN' has like Exhibit 2(1 a high risk employee or red employee was, lie (bet that she got 41) points for the incident involving her IS Q Well. the -- alie got 40 17 Ut MRT'711T: (.)hjeciion. \'ague. Q Where did the 40-- If she-- Where did tile 40 p0int5 -- Excuse lie Y oii disagree that it she had not -I will say it again. You told me elier that if she didn't 21 have the 40 points for the knee In)ui'y. that she would be ii 2 o loch would not be a red -- a red or high risk employee. 23 correct? 24 A Coiiect. 25 (Exhibit 2 t was piemotmsly marked for identification.) 19 20 though: didn't she?' MR GRAFt:: Objection. Mischaracterizes 23 evidence. 24 Q there's only one personal injuty that's reportable 'S listed on 7-20-09. injuries repot ta Ne 40 o iint s '\tid that 21 c . - 22 (Pages 82 to 85) Merrill ('orporation 877-489-0367 vww.nieri'tllcorp.com/law .IEFFREY BECK 9/6/2013 P.uec 86 I 2 3 4 Q Would you look at lixhihit 21? A 6 Q You notice down in the -- in lie nildLhIe it says 9 10 II 2 ou ever seen this type of kirmat. lnipluyee I niui Q Incident Ntificat ion Fonn, bet'orc? A S I I have it. 5 7 I'aute 8$ 3 4 Yes. 5 6 ciriplovee has a PP rating ol blank points and has blank repoilable and non-reportable injurie r)o you see that A Yes. sit' 7 S 9 Q Why is that iiilirinatioit seili out to BNSF mmrs' MR. GRAIl': ( )bcct to hick ol Iaiuliihuy It) It IS A It was information that we were charged to jV otti leaders when we sent out this voicemail at the time, () u at the tune when 'sls \\'alhis was uuiiuicd, tlicie's whole protocol of uoulieatwns that occurs once an injury i 16 reported at BNSFnect? 17 17 A Yes, sir. Q And one of those protocols is that certain BNSF IS people get not i lied including a -- a nurse hot line, whether 19 it's a BNSF employee or somebody -- BNSF employees, correct' 20 .\ Yes. 2I 12 13 14 18 I9 20 21 23 24 25 2 13 14 IS (, MR. (iR.'IT: lack ol kiiiud:ition. Q And the hut Ii i nose then cnt eb (lie Ia spi taliar the emer2encv room and requests in) run.ttIolI. correct' I R ( il\ii' Saitie ohtccttoii 22 23 24 (,) And it's got an address -- excuse mc -- a phoite number md then job swiichman L)o you see that" A Yes, sir. Q Now, do you see -- What's the -- Ihere's a I hereby authorized. Would you 'cad that please iliei'c wham it says? A Ii says,I hereby auuhoriLed my niedical provtdi' to i dense any and all intbrmatioi, that is requested with respect to this medical condition to B N SF Med teal Ens' iron mental Healt I 1)epartnient and/or their desiguecs. Q And then it's got a signature slot I' s' in empLoyee. employee siu1atuii'c' A \'e. it does. ihat empl re in this -- on Exhibit 137 ned by Ms. Wallis'? No. it was not. or Itic date tor the employee to Q .\nd is the -sign. was that signed by Ms. Wuillis'? A No. it was not. Q Now, when you look down at diagnosis iiiider health care provider please complete the entire section. does it give a diagnosis ol' what her injury is'? A r)ianosis, I think that's -- it's citlici' I.T knee injury or for knee injury. 1 -- I can't read ii for sure. Q Okay. Al I right. And tlin it'S ot medications that ire pu'eseribed I )o s oil see those'' 2 Piun u17 AYes. 2 Q 3 I don't believe they request any in Irmation. I A beIiec that the hot line nurse calls ii' an employee is headed to the hospital to ittake sure the hospital is ready to accept 3 4 that person. 4 A'-Yes. () I )o you know wItà-niedieations are? 5 (Fxhibit 137 was previously nmrked tör identilication.) Q Would you look at Exhibit 137 l)letise" A Sure. I have it. Q (.)kav. And it says on top. IJNSI" on-duty medical status krm. Do you see that? 5 A Nu,1donot. I 2 6 7 8 9 10 11 A Yes. Q And tlten the next Ii tie. WOU 1(1 you read it, what it 12 says? 13 A Please ['ax completed 6i'ni to Debbie Uckno. RN. it g66-7- or 870-0924. 14 IS 16 I7 IS 19 20 21 22 23 24 25 I 6 7 It) I 12 Q Okay. I'heti it's got for the employee what name doe Q I )o you know wlielheror not an employee's abil thmk clearly could he artceted by such medications'' MR. (R,\ FF: Objection. 8 9 s:ipro\eii Lfld I I .zick ni kuuiiidatmon just tcstitied that he doesn't know vhtat they are. Q So you would agree you don't know t)fle way or other, coned'! A Ido not. objection.., 3 14 Q' 'Sd'ould you expect Ms. \\'iIlis to provide infe IS once the doctor gives her uriedications that may affect Ii 16 ahito think clearly'? it say'? A Jea net te Va lii s and it -Q ('lot her Social Security nututher? A It looks like it. yes. MR. (IRAFF: Object to lack 01' luundatioit. 20 Q Okay. Well, okay. 'I'herc's -- there's a digit number 21 there that has got three digits. then two digits_ then kur digits, which is the same number ot' diu.its that a Social Security number has.,c orrect? A Yes. '['hat is correct. MR. GRAl'OhjectionuiiintatW I7 IS 19 22 foundation. Calls for speculation. A Are-- are you asking if-- ml' I would expect her give the medical focihity iiiforinat ion'? Q No. No. to the u'atlroad sy,u're charging I with 1miIui'e to give infot'inatioiu? MR. (IRAIT: Same objections. 23 24 25 Q Wcm'e you looking fom' niediL'aI information with to Ms. WaIlis? 23 (Pages 86 to 89) Men'ill ('oil,oration 877-489-0367 ww.mct'rihlcorp.com/law JFFFREY BECK 96/2013 Pagc 91) Pai.ie O. ANo. 5 Vere YOU looking -- VeIl, whether you're looking for medical information or a description of events, would you want Ms. Wallis to give you - give you or someone at I4NSF a statement or a narrative whether tinder the influence of 6 drugs? 2 3 4 A 8 Lack of foundation. ('ails for a legal conclusion. A I can't answer that qtiestlofl. I don't know. MR. JtJNGBAUER: And I would offer Exhibit 137 into evidence. Ihey have already been offered. Just for the record. I'd also otter Exhibit 61 and Exhibit 112. MR. GRAIL: We're reserving all objections to 9 adniissibil ity obviously at this t imne. 4 S (I MR. ORAFF: Objection. Vaeuc. Aruinciitative. 7 8 Wallis's informed conseur? MR. ( iRAFI : Oblectmon. Cal Is mr speculation. Q Well. again. I-don't knuwiat tldivas al 7 IS I, but I hcii is Lt -- Would you - - Docsii't I3NSF also have a rule that employees must be alert and attentive at all times? Yes. v can s. Wallis if she is in pain and/or 14 taking prescription niedication that may ailct her thinking, 14 IS how can she be alert and attentive when she's providing nformation to a eomnpaliygthceL?. . IS 9 tO II 12 1( MR. ( iRAH 17 18 19 20 2I 22 23 24 25 Objection. Speculation. l.ack of MR. JIJNGBAI.[ER: And -- Yeah. Admissibility, bii 10 II 12 [6 7 not on loundation -- I mean as for as ant bent Icity, Counsel. Is that correct? MR. GRAIl: Of which exhibit? MR. JIrNCiBAUER: Well, Exhibit 20, first of all, is another one, the PPI document. That has -- It's a Bates stamp number. These have all been used in other depositiofls. hut 1' you're saying -- MR. (IRAFF: We-- We can talk about it off the foundation and argumentative. A AL-- at this point hen this Unni as iilkd out she miever ha a eonvemsatioii with a company officer. Q I liii I herea 11cr. and Iltis is -- it's still not on the date of the accident. Its I I -1 6-00, isn't it, down at he 19 record. Counsel. I a ni not going to make authenticity 21) dcteriu jima tions in this deposit ion. 21 MR. .IIJN(iRALJER: And I would offer also Exhibit 122, the alternative handling, who's eligible and who isn't. l,ottont! 23 MR. GRAIl: And, again, we're reserving alt objections as to authenticity and admissibility. MR. .11 NGI3ALJ ER: I a iii not agreeiiig to that. A Able to-- 1i 24 MR. GRAI:l:: Objection to the extent it 25 I Page 93 I 2 4 5 6 7 8 9 ntiseharaeteri7es the document. Q You see the number tinder date, II - 16-00 near th bottom on the right-hand corner of the page'? A 11-16. MR. GRAFF: Same objection. Counsel. I belii it's November 8 or 2008 when this iitei(IeflI Oeetirre(l. MR. .ItJNGBAtJER: Oh. Excuse me. It does eight. Excuse me. I'm sorry. It's knocked oil. II - 16-8. Do you see that? Q 10 A 11 Q Okay. And then it says please fox completed ion I2 Yes. I see that. 11-16-08. .1 4 S 6 7 S 9 time mow is I 2:48 l.nm. t2 MR. GRAI:1.: Objection. Asked and answered 4 Q Well, down at the bottom IS A I -- Ii says please lax fonu hack wheppuethIng 17 18 Q A 19 Q I am looking at the bottom, very bottom down hem I am too. l'lcase -- 4 16 do' 20 A Oh. 21 Q 22 A Completed tönns to Debbie I Ickno. RN. IHE 'IL)EOGltAPHER: Going oft' the record. The 10 and do you see vlto that is'? 13 need to know ii you're going to object it so we can -- while discoeiy is still ol)efl. I am also otlering Exhibit 26 which is the document -- the chronology of events and -- and I would offer Exhibit 16 which is -MR. (iRAFF: Again, we're reserving all obtections as to authenticity and admissibility. If you want to ask this witness about his knowledge ot particular (locunlents. that's tine. MR. JIlNOBALJER: Let's go off the record. tS I (' I7 I') 20 Please fax -- 21 23 24 866-870-0924. 25 medical mntonnatton such as that on I :xh thu I 37 without 23 Q Okay. l)o you 1,elmeve that BNSI has a righrtgi 24 (A break ensued from 12:48 p.m. to 12:55 p.m.) MR. Jt.INGBAIJER: And. Counsel, do you have the r)c1,aitmmmeiit oil .abor interview with Mr. Beck? I las thai arrived vei'' ii shoim Id has e. MR. (RAFF: I believe it has. I.ei iime check. li-IL \'IDEOGRAPHER: Back on the record. the thu now is 12:55 pin. MR. (iRAI:F: I do have ii. Counsel. MR. JIJNGBALJER: Itiamik you. I believe we have previously marked that as Exhibit 55. (()t1thc-iecord discussion ensued.) MR. JUNGBA1.IER: ilwe're on the record, let's go ott ihte record until we get this detennined. 25 li-IL vIlMo(;ttAt'HER: Going off the record. lIic 24 (Pages 90 to 93) Merrill ('orpora tion 877-489-0367 www.memrilleorp.com/law JEFFREY RFCK 9/6/2013 Page 96 tune now is I 2:56 1)111. 3 4 5 6 7 S (A break ensued from 12:56 p.m. to 12:58 p.m.) TIlE VIDEOCIRAPIIER: flack on the record. The tiuuw now is 12:58 p.m. MR. GRAFE: We had -- Opposing counsel had united Mr. Ness -- Mr. Ness's deposilion for two ocloek Pacilie time today. It is now II o'clock Pacific tulle. I-Ic has just informed me fur the first lime hail he docs not intend t take that deposition. \Vc certainly object to the kite notice and fir disruptino Mr. Nesss'thiy. We also will object to any sort it) II of euuu(uuuualice or extension of' that deposition. S 6 7 8 9 JO II MR. Jt.rNGIIAI mR: All right. My response is this. 12 4 12 Is I have had a lone woikinn noreemeuti and scheduuluinz aOreenlelll 13 utlu Mi. I .entiiii of counsels office. i\iud Mr. I .ciutin i lia 14 4 luecuu '5 apparent lv replaced b counsel in the past few weeks And I 6 17 18 19 20 2 24 liii vely Coiled ned thai ninny of the agreements that eouiisel had reoturding discovery. regardinti exlsihiis, retzardin depnsituon have tuoss fallen by the way side now that the discovery dcadluuuc for motions with the Cour has passed. 1 find tlt;ut cry 1)l'obiefliatic. And were going to need the Court to discuss it. We had a deposition noticed this morning of' a -- ofa witness. Ms. t Ickno, out East. And counsel said the were not available. And a lawyer representing Ms. l.Jckno of MCMC claimed hau iIt suhpoena was deIctive. We have agreed to try to uescheduk he depo. huu t we will pro ide to the (. wit documenis and IS 16 17 18 19 20 21 23 24 Ms. I)uII to give -- to pw ide disparate treatment ft)r her upposcd to my client and.'or to secure testimony otMs.j)utI agautst my client in the I' 1:1 A ease. All of that is germane \Vc have made that -- Flie (out t has not been able to rule on that yet, which means we must now sin lii the Court has time Ii hear our concerns. I must try to l)iotect my client's interest the best way possible by assuming the Court may rule against tue. even thotich I don't believe the ('ourt shottld or will. I hats why I cannot Lake Mi. Ness's deposition when there are depositions that are iii the sehente of things more important. So it's beeausc of actual lv counsel br the I )el'endatit's insistence on a so-called 10 deposition limit. I know the rule exists in the local rules of the Western I )istrmct, but we never aQreed, nor has the Court ever ruled that prior depositions, till hough cuniiisel, Mr. I cult i iii and I agreed we didn't have to ic-take the depositions, we never, never said tlittt those were going to count against any limit of depositions in this ease. Iii fact, we had talked abottt many, litany witnesses whose depositions s crc going to be taken in this case that would have exceeded 10. A al I never had an objection 01' any ki uid front Mi Lcntini. And I'm -- liii statinu that this is a surprise. And ii' need he. will ask the Court far a continuance and/or oIlier rclicl'. So the reasoit that Mr. Ness's deposition is not goin lbrward is becasise of util'oriutiately the tactics ol' counsel. And I would add one other thiuta. Mr I.entini and I Pae' I 2 3 4 5 (; 7 X 9 10 I [2 13 14 IS I6 I7 18 I9 21) 2I 22 23 24 25 contracts thai show that MCMC. especially Ms. Uckno. we believe, is under the control of BNSI:. And that RNSF could have asked lhr bet to he at a deposition And most irnportantl\ counsel recently lor the tirst tune is elaiiniiig that prior depositions taken in the OSI I,\ casC s Lb uegard to Ms. \lis count auaiits; a 10 deposition local rule in the Westeru l)istrict uiWashtngtoii. I hat was ncs er discussed beteen counsel. In fact, the record will show we had asked lot ninny more than 1(1 depositions with the ( )Sl IA Al .i with the ludge And, in fact, the reason for that was there were so many witnesses and peopk with in lorma hon that we could nut get our discovery done with hat many -- with the limitation of It) depositions. So we need to address the reason tbr the postponement of the deposition of Mr. Ness is based on what I consider to be a last minute change in agreement ol' scheduling and discovery between my otiicc and Mr. Leittinis ollice that counsel is nos' Ityilig to limit discos civ ol-- 01 important depositions and make inc choose until this Court can rule whether or not there is, in fact, a 1(1 deposition limit in this ease controlled by depositions taken iii iii .\I..I meeting. Sinec we have not been able -- .\iid then counsel has also iefused Li provide Mr. loldra for a deposition even though Mr. Boldi testified that he did not icniemhei nuluicrotis conversat ions wit Ii 97 agieed to far all of the xhihits that I had sCOt to hunt that -- previously that counsel has in books that had identified as exhibits in the ()SIlA ease, that if there was any clainu as to authenticity, that 'e would need to take depositions of io prove authenticity -- faundation for (u authenticity, that we needed ii) know so could do it within 7 the time period of discovery. I'his is a new claim now for the first t inc this afternoon where counsel far the defendant is -9 is challenging even authenticity oI'dociiments provided by BNSF It) to plaintiff and to OSI l.\ that are flaics .tampccl BNSE documents And other documents that have hecit tised in depositions. we have never had an authentici tv argunicn t up until this date. We 2 13 claim surprise. \Ve claim prejudice by So f.that reason1 14 15 16 17 that's why I ant advusuiug couuusel that we can't ao Mr. Ness's deposition hecatise we can't -- we don't know whitu the Court's going to rule. MR. GRAFt-': You linished. Counsel' MR. JUNOBA tiER: Yes. MR. GRAI-'F': 'Ihank you. I dont want to take tip 20 this witness's time with aruunent. I think theresa time and 21 a place far that. I will say to respond briel'iv. Mr Lent iou 1') iii speaking with hint disagrees with counsel's i'q)rcsentali)flS 23 about any alleged agieements. Vith respect to Ms. I Ickuto. we 24 received notice far the tirsi time yesterday afternoon Ms. I )u Ii aiui.L or Mr. Kestei which inc ci ucial to this case to see whether or not sonic type of deal was cut between }3NSF an 25 repoiting to note her deposition far six o'clock am. Pautic lx I) 25 (Pages 94 It) 97) Merrill Corporation 877-489-0367 www.mcrrilleorp.com/law JF.FFRFY BECK 9/6/2013 Page too Page 98 6 time today. And the subpoena was issued purportedly about the Western District of Washington. not the District of Connecticut where she resides. So it is a Ilictally invalid subpoena. We have agreed with Mr. .Iuiighauers office to cooperatively reschedule that deposition. My undersi antling is that it will be rescheduled ibr next week. \\'itli respect to the iwtor 7 deposit Ions. theres tic t ually a St pu lat ton among I he parties 8 in thc record that depositions taken before the AU shall he trea Led as if they are taken in this act ton the -- the ru Ic c t ted by Mr. Jungbauer of a I 0 deposit ton tim it is not a local rule. It's Federal Rule of Civil l'rocedure 30. And we are -As we have conununicated to Mr. Jungbaucr weeks ago. we object to Plaintiff taking depositions in excess of' that limit without seeking lease of the Court as is required by Rule 30. With respect to Mr. Boldra. he has already been deposed. I understatid that Mr. Junghauer and his office has tiled a motion fuir lease to retake Mr. l3oldra's deposition. Our tesponse to that motion is not vet due. And we will respond itt due course. With respect to authenticity. all I has e said. Counsel, is that we ale preserving oui objections as to admissibility and authenticity at this time. I am happy to discuss it with you off the record. I don't believe this deposition in taking up Mi'. Beck's time to do so is au ap)rOpriate use of his ttuie oi' an approprtatc use of this deposition. MR. JIJNOBA(IER: And. Counsel, the the I 2 3 4 5 C) I)) II 2 I3 14 IS 16 17 1$ 19 20 21 22 23 24 25 2 3 4 5 6 7 8 9 I)) 11 2 I3 14 IS 16 17 IS 19 20 21 22 23 24 25 2 3 4 5 6 7 I'u I I 8 C) I (I I I 12 please pt'ocecd. (Lxhibit 138 marked for idetitificut ion.) Mi'. Beck. svould yOU lookat Exhibit 13$ that was jutst gis en to you md tell us what that is? A U.S. Department of -- Q All tight. MR. (iRAFF: So -- So. Mr. Junghauer. for claritication. Exhibit 138 is -- is there aii'eady ati Exhibit 13$ or has it been previously marked? MR. it rNGBAL)ER: I don't believe it has becti pre'uously marked. It may be ltrt 01' another exhibit. .ounsei. but for purposes of' identifyitig it here we're going to call it 138. MR. GRAFF: Okay. 'Ihank you. 13 14 Q Mr. Beck-- IS MR. JUNGBAUER: 'thank you. Q Mr. Beck. tell us. the Court and juty. what Exhibit I (i 18 138j'! i It's a " Its labeled I1.S, Department of' T.ahor 17 19 ()ccupational Stfety and Health Administration. Interview 20 Transcripts. RNSF Railroad Company -- jut SOiTY -- Ramlm'oad 21 23 Compttnv \'ersuls Wallis. Laura Aunan. interviewer. Jetl'rey Beck. interviewee. James Shaker. attorney tar BNSF. Dane Freshour, Humati Resource L)mrector BNSF. Dated l)ecemher 2 24 liii sony? 22 25 Q Whtt I am asking yott is on the last page. ts that 1) Puce lilt authenticity argument does need to he addressed is hecatise it's I something that cottl(l b citred wtth this -- with this Witness. And even though we have in quit today according to the court reporter's office at two o'clock. I wtll tieed to reserve the full seven hours of time. ifiteed he. to try to make sure that we have the opportunitY to show document after document to this witness and start to provide for authenticity. And we may need to subpoetia other people to show tip at trial who have provided the information -- the authenticity for such inl'onmttion as \S'itS provided to OSI IA. That may be Mr. Freshour or whoever we Iiee to do. 1 -- I view this as absolute gamesmatiship. And it was not contemplated when Mr. I .entini and I wci'c working together And I really do find this to be an issue hat tieeds to be discussed, We will discuss it with the Court, but that's why it's so important. And I guess we can move on and discuss it later. Counsel. No can we go back on -- or can ss e continue tlte deposition. Counsel? Is that agreeable? MR. (1RAFF: Yes. I would like to continue the deposition. And I would say. ufyott want to ask Mr. fleck any qitestions about tile ttitthenticity oI'tmy of the exhibits, please do so. We are going to &ilitcct to any sort of' a Cotititlutlilee Oil this, We base -- we have comrniite(i to -- utid Mr Beck his taken a day fi'oin his vacation to cotupkte this deposition. Wc tire het'c. Were available to flntsh tilts deposition today. 1 clout svant in svaste mote tiiOe with au'ut1K'ult between us. let's 2 'our sigtta lute tI lit YOU have i'cad uttd utidei'stood I lie above pros' tsion of law that tli is was under oath'! 14 MR. tJRAFF: There's not a signantre on ttiy exhibit. A Theme is no -- There is no signature. I have one on mine. Anyway. let's-- We will get -Q Were going to send that to you inimnediafely here. Bitt in the meantime, Mr. Reck, would you agree that you haven't seen Lit. signatttre page yet apparently, but that this Exhibit 138 is the tratlscrtpt that you reviewed to reflesh your recollection prior to corn t tig ii to this deposit iou? A Yes. I believe it is. Q ( )kay. So -- and we will get into ihztl in a mnotitent Mr. Beck, are you as a ulailageuletll persoti -- exeutse inc -- All 15 ss'ere you li'otn clurt tig the tm mite that you were working in Seatt I. 16 21 foiNSF. did vott rCecive ICP bounmses anntially or eligible fur them it' 111ev ss'ere awarded?'1 MR. (,RAFF: (.)bjeetion. Vague. Q I didn't hear you. MR. (:iRAFF: I just said objection: vague. MR. .lt JN( iIIAUER: No I meant the wttttess. I 22 timitlei'stand yost. 4 S 6 7 8 9 10 I I 12 I3 7 I 19 20 l)o you know what ni ICP is, Mr. -- Mr. Reek? Arhat was part of'iuy euinpeilsaIioii packagc, yes. 23 24 Q 23 Q Yes I ss otilil like to talk to soil :tbout that. ,\uid so 26 (Pages 98 to 101) Merrill ('orporatlon 877-489-0367 svsvw,merril lcorp.com/law JEFFREY RECK 9/6/2013 Pg. 104 I 2 3 4 5 6 7 8 that would has c been true that you and other management peopi at BNSF would have been cliible fbi what's called art ICP hon during those years including the years of 2008. 2009, all the way to the present. coiTeet? A Yes I hat would be lbr management and'also fi sonie scheduled einploycs I believe dispatchers get something. Yard masters et someihititi and so do locomotive engineers Q \Vell. is it -- \Vell. is the Iocoiuotivenineers ICP 15 bonus based on personal injuries and'or lost work ikws to voui knowledge? A Not ii) lily knowkdge..nti. Q Isn't ii true that your I UP bonus and the bonus for ither nianacemeti t o filet als who were t nvol veil in the inVest joatton ot the utcident uivolving Ms. \'i'a II is and Ms I )ul1 that part of your and their compensation of the ICP bonti. 16 would allow up to 15 pciecnt of-- of the bonus was bason 9 10 II I2 14 either lost work days of employees, dates missed from 18 and,or personal injuries that were reported. reportable 19 l)ersonal mjures? rk 17 3 4 5 6 happens. 8 10 I low do you know that? I can only go lioni tiiv personal experience. Atisi -and that's not something that I would -- that I would II consider. 12 Q Well, you know each year you do get a bonus. How much was >.our bonus for the year 2008 iii which Ms. Wallis wit titjured? A I -- I don't have any idea. I don't remember. Q Well, svhat's you -si estimate? Give me a round number. MR. GRAF : Objection. Lack of foutidation. Calls for 5peetmItti( ii 9 IS 14 15 16 I7 18 19 20 24 25 know what -- what Lilt VCS tlttt s:tttv aspect 25 21 22 23 A My answer to that would be, no, I don't believe that 7 MR. GRAFF: Obteelion. Calls for spcculation Lack of foundation Compound. Vague. A 1 know that there is -Q You can answer. A Ihere is a salety aspect tO our ICP bünus. I do lot 20 const t titte a Iot'iht t al conllici of interest br the ilianager or official at I3NSF who's living to decide whether or not to eharce her or not with a rule violation'! MR. toraIegT conclusion. I ,ack of tbuiidat ton 21 22 23 24 ( A 'A 2O.flfl0. Q (I)kay. What's the biggest bonus you have received as an IUP bonus, your best estimate between 2008 and the present? A Probably right around the S2U,000 mark. Q Okay So itil's 5,20011(1 itid if IS icleetti otiltat Page t0 Page 103 1 2 3 4 Q Would you agice -- You do not -- Have you ever -- 4 evidence. Incomplete hypothetical. Calls for S1)eeitlatioil and MR. (IRAFF: Objection. Lack of foundation. 5 I :ie k of foundation. S I do not believe it's m;t led to its, no. A 7 Q How was it conununicated to you? (il(AI I Same obeetion A Through -- It Ii:t. hectt communicated in the past 9 I 1) II 12 13 14 IS 16 17 t8 I9 20 21 22 24 25 bonus is based ott persona! injuries and/or lost work days, that 2 6 8 I 1 sil't it trite that each ear I NS F mails a copy ol the I (.'P criteria to you and other employees? A I don't believe its -- 7 8 9 10 II A Well-- 12 Q When's the last time y -A The last titne -- Repeat the question please. Q When is the last time that you icceised one ot thEm. c-mails regarding ICP homLs'? IS 14 I5 16 A Prohabl around I)ecemher of last year. Q Okay. And that would have been 2012. So you get them at the end of the year? I7 1$ 9 A tjsuallv. Q And ii-- if-- ifpeoe who are irving to decide whether or not Ms. Wallis, for instance, should be ehaiocd with a title violation when she reports an injury. il'their - part of their bonus is based upoti whether or not she tilc a persona I iniury or not, would you aeree that such coii Id MR C'iRAII: Objection. Assumes flicts not in S 6 through a corporate e-iliat I Q 1 hrough an c-itiatl. Okay. would be S3,tJOU a year, correct? Q You agree with my math; don't you'? MR. (iRA IF: Same objections. A Your math is eon ksltthtt 65 is as l)re\toq.s1y marked for identilication.) Q Okay. Would you !ok at Exhibit 65 l)lease7 A I have tt. Q Okay. Can you tclI us what it is'? A looks to me like a Ioeonmti ye download. Q All might. And if it's horn I 1-16. and if it's ham one of the -- ul' it's &oun the date I I - I 6, and t lie end time on there is November 16, 2008 tar a BNSF locomotive, is this tlte type ol' in lbrmuation that -- that ollictals for BNSI could review to see what speed Sue Dutisvas operating her locomotiv consist at? MR. GRAFF: Objection. Calls ibm speculation. 20 21 22 23 24 25 I ack 01 lbuiidai urn A Ihis is a -- this is a dtiss uload. It is for RNSF. 1.116. And it looks like it statied on November 3rd at 4:01 and end tithe of Novemberl6th. 2008 at 5:1 7:43. Q Right. And all we have got here is the pages for 27 (Pages 102 to 105) Nierrill Corporation 877-489-0367 www.merrilcorp.com/law JEFFREY BECK 9'6/2013 Page lO(' Page lOS 2 November 16th at -- and it's got the t uincs there, 11-26-07 to -- excuse ne -- 11-25 at the l)ottom up until II -26-07. 2 3 Correct'? S 4 A 4 I Yes. 8 MR. GRAF1:: Ohiect to the characterization I think the -- the date, November 16th -- I think you said 26th. 1 apologize ii not. MR. JtJNGBAIIER: It says November 16th, 9 Counsel. 5 6 7 II I 6 7 8 9 MR. G1vr'Right. I do--IapoIne. - 10 II Q And it', in fact, the II3PSI reads zero all 12 through. could you detenniute whether or not Sue Dull W115 IS telling the truth that she was braking her or applying lie IS brakes on her loeoiuuti.ve t? 14 MR. (SRAI:F: I object, Mr. Jungbauer, just to the I5 extent that it looks like part of the IBPSI numbers are covered I (i tip by a box that says no hr,ikes were applied at any lime. Am I? 1 don't know where that box caine from. But at least all the I 1BPS! int'ormation on Exhibit 65 is not in the document. 19 MR. JUN(113A( ER: What I am getting to -- I agree 20 Counsel. See ii' we can tind it without that. 21 Q But br purposes of -- of' -- of an utves Oat ton u I' 22 the incident, if HNSF wanted to kitow whether or not Ms. J)utt'23 was telling the truth or not, isn't it true that UN SI' could q 24 have looked at this type of data to see whether or not she ever 25 14 IS 16 17 18 19 20 2! 22 23 24 25 2 investigation that I NSl managers discussed with Mr. Kaiitimai what the findings on his e'ent recorders were? MR. (iRA IF: (Thpecti on to lack ol' Ibundation. A I do not recall being present in those meetings with Mr. Kaut,man. Q Do you have iwy knowledge as to what the criteria is lbr promoting someone-irom hostler to a management position such as train master or even yard master? A Fioin promotion brom a -- a hostler to a train master or yard master, one, for a yard master it would be to be intervteved lbr the position. look at the background to see what type of-- of experience they have moving cars. talkiuc themmi om -- or in terv iewmg them to find out who the hst candidate is. For a ham master, they would have to pass a -what they call a front line supeivisor's exam that would be given by 1-luntan Resources. Once that is passed, then they are -- they're vetted to apply lbr dullèrent train master positions, and they would have to go through the interview process. Q For someone to move tront hostler to yard master, is that a craft transt'er? A I hostler to yard master, 1)0. Q Are you stile. or are you ucssing or do you know? A I - It's -- It's not. No, it's not. Q Okay. And as thr as whether or not when BNSF has Piat 107 1 applied the brakes oi- not on her locomotives? 2 S 4 5 ( 7 8 9 A MR. ( iRAl:l;: Same obteetioft Vague. This - tins document would -- would tell you whcthci she applied the independent brake. 4 Q Okay. It also would show whether she applied dynamic brake and whether or not the throttle position was changed. correct? A Correct. Q Did BNSF ever determine vlictheror not Ms. Dull was Ill telling the truth when she said that she -- when -- when she I I 12 9 to 13 I7 practices. 14 15 16 17 Q And wouldn't that have been Mr. Katitzunaii iii this IS 19 ease? 20 A Yes. 20 21 23 A (Reporter clarification.) MR. JUNGBAIJER: K-a-u-t-z-nt-a-ui. Yes. I believe Mr. Kaut,.man was the road Ibreman 24 engines. 25 Q 21 22 19 Isn't it true that iii meetings leading up to the openings for either yard master or train master, do they make those known to all employees or just select employees? A Its usually posted so that they can apply t'or the yard muster positions. It's posted through -- Most times they will -- We vill post those jobs on the computer tie-up Screens for the employees so that they know they're up for bid. MR. JUNC;BAVER: Counsel, could -- Woukl the court reporter check to see whether or not the signature page for the -- has arrived yet for Mr. Beck. II IL REPORtER: It's here. MR. (iRAIF: Objection. Assumes licls not in 16 IS 7 8 12 evidence. Calls fbi speculation. Lack of fbundalion. A Reaslu ' locomotive ta es is not my expertise. [hat would till to a ron oreinan or superintendent opciating 15 6 said the speeds that she was going. one way or the other. whet hei au analysis was utiade? IS 14 I (1) 23 24 25 MR. It JNGRAIJF.R: We actually sent the whole exhibit, ii' you could -- with the signature page. Let's inuk that as -- substintte that as Exhibit 138 please. (An off-the-record discusston ensued.) MR. GRAFF: Just t'or clarification, Mr. Jungbauer. so I believe what you are saying is there is a signature page that you're about to ask Mr. Beck about. You want to attach it as the lust page ol' Exhibit 1 38 that was marked iii this deposition? MR. JIJNGBAULR: Yes. MR. GRAFF: Okay. Thank you. Q So. Mr. Beck. isn't on that he last page of' Exhibit I 38 your signatitme' A Yes, it is. 28 (Pages 106 to 109) Merrill Corporation 877-489-0367 www. merrillcorp.coiu/law' JEFFREY BECK 9/6/2013 Page IL I Q Okay. Is-- 1)oes Pxhihit 138 to the best of your I 2 3 knowledge tiiirly and accurately show the -- the questions and answers that you recall when you partieij)a$ed in that 4 Interview? 4 2 5 6 7 8 9 10 I 12 13 14 15 16 17 18 19 20 21 22 23 24 2 personal or personnel file of a -- ofan employee such as either Ms. l)uffor Ms. Wallis? MR. (iRAFF: Object to lack of foundation. Q What - - what iionrma I ly are in those tiles? MR. (iRAFF: Same objection. A We don't keel) personnel liles locally. 'i'he -. the personnel tiles aie kept by our personnel records. personal MR. GRAIl:: I object just to the extent it's S asking him to eniniucilt Oil all of the questions and answers he L 6 he h as not had an opportunity to review it. I you '. on Id Ii ke 7 hun to review ihe whole document -8 records. II Ut it would be mnlorrrmatioii such as accommodations. 9 discipline, medical leave, their atteiidancc records, any Q Mr. -- Mr. Beck. would you -- When von get -- i\lIer this deposition is complete, would you please provide a copy ol 10 training that they have received. Thai type of' infirmiiation the transcript that you reviewed prior to this deposition to would be in their personal records. I -- I can't hear you. counsel for the railroad so that if there is anvthin dijierent MR. GRAFF: I can't hear Mr. Juiiobaucr. I2 between Exhibit 138 as -- as it is here and what you have and 13 A Weve lost -what you reviewed so we can show it to the Cowl, would you 14 MR. GRAFF: We seem to being having some trouble agree to do that? I 5 with the microphone. A Yes. 16 MR. GRAFF: You can hear inc. Mr. Beck, yes? 17 Q Okay. Ihank you. 'II IE Wl'FNESS: Yes. MR. JUNGBAUER: And iii that ease I of6r Exhihii 18 MR. GRAFF: Okay. He will call hack he says. 138. 19 Ii ll REPORTER: Should we go oil the record.' MR. GRAFF: We're preservina all objections as 20 MR. GRAFF: Yeah. Let's go off the record you know. 21 l)lease to correct these teeliiiical dilliculties. Q l)id BNSI: at the time you worked in the Seattle area 22 THE VIDEOGRAPHER: Going off the record. The have meetings to 1)111 toQethei, tile sa6ty action plait tbr the 23 time now is 1:31 p.m. Northwest I )ivision each year? (A break ensued front 1:31 p.m. to 1:35 p.m.) 24 A Lucy -- There were meetinos between coinillittees. 25 II IF VIl)F()(IRAPI lER: We're back on (he record. I I lit 4 6 1 8 9 It) Pim safty eoinmiiittce members and -- and the mmaimagcr of satt' on tile Northwest l)ivismon. I here was also several conlerence -comilerenec calls between the safety -- the union sali.ty leaders, the illanager at satety, tile division leadership and then superintendents down iii the train masters to discuss the safety action plan so that we could finalize it before it was 2 3 hack please 11(1(11 the cutirt reporter. 5 6 7 8 Q \Vherc, ifamiy, wlmeie would information reoamdinQ either SIR Ps or oilier complaints made iii (lie Northwest I )mvislon 9 be kept? I II MR. (iRAFF: Objection. Vague. lack of 12 foundation. A Ihe SI RI's would have been kept in -- Ihere's an S-l-R-P log that - - that warehoused all the active and inactive 13 4 SIR Ps. 15 13 14 I5 6 I Q And where is that kept? A IS Q Okay. So who has access to that? A All (lie company ollicers have access to it so that they can -- ihey can put intoimation in there, both TYE 21 mechanical, maintenance away. Ihe sa itv coordinators ha c 22 access to it. 'Flie safety conirnittee members have access to it. 23 And thci'e may be a few others that have access to it. I am not 19 20 24 25 sure, but those aie I lie In ni's share. Q What type of intbmmnation would be kept iii (lie 12 vamtie -- lR .ItJNGBAt.IER: We might have to go back. tIhe i'eputèil-eäds the questiotl and answer.) Okay. A couple things. Now, Mr. Beck, is -- is it true that people iii the Seattle area have access to personal or personnel records and mnli.rmalton of people like Ms. Duff or Ms. WIlis throtmh the BNSF intraaeJ MR (RAI I Objection Vague. A Othcers would havi aece Q nd who souki ollicers includ7' Scheduled einplovee. train masters, terminal 17 managers, myself I an going t' ir;ib a glass of water Ilcic IS teal quick. 19 Q Yeah, Go ahead. I6 It's kept on the I (N SI intranet. 17 The repotter reads the questiotL) MR. (iRAIF: i'm going to object. that's a 4 pLulil ished. (13 The time now is 1:35 p.m. MR. JEJNGBAIJER: Can I get tile last question rea( I A 20 (An off-the-record (liSCttSSIOfl enstied.) (Tile lepomler reads the questioti amid answer.) 2I 22 23 24 25 A it wouldn't be scheduled employees. I'm sorry. It would he exempt emnployees.wlt would be train ministers, any -. any oflmcers ftr the ci impamly. Q In other words. atiy oflicem' 'ho could make decisions 29 (Pages 110 to 113) v1erm'ilI (orporation 877-489-0367 vww. nierril lcorp.corn/law .IFFFRFY BFC'K 916/2013 Page ll Page I 2 3 4 on whether or not to hold an investigation or apply discipline I to someone such as -- someone such as Ms. Wallis or Ms. l)uI'Il 2 they would he included? 3 4 A Repeat the -- Q Rcardf w tetlici' its 5 MR. GRAF: Objection. Vague. 5 6 A Can you repeal the question please? 6 7 qWhat I ant tiyino to get ifis. when you say 7 I7 o1fiers such as train masters and all the way up, be it superintendents, assistant Supes. were any of these types 01 oflicial positions for BNSF all the way up to Doug Jones and h iglici, anyone like that could access such in lirmatiofl ____________ eorrect' A Yes, sir._________________ they could access it not only for purposes QI looking at discipline oi -- or -- or whether to have au investigation as we talked about, those categories, the personal record and histoiy with the company previous. but it 18 19 8 9 101 II l2 14 15 I6 IS . trect? conipany 104'. eorrecL'2 19 NIR (IRAI'r: Objection Cu11s for speculation as 20 23 yes. Q Okay. I can tell you're having a little hit of trouble with your voice so we're not g)ing to go too iii uch P;t 1 2 3 4 5 6 7 S 9 0 II longer here. (an you make it 15 minutes or -A Yeah. I .tust got something caught in my throat. 10 I 12 3 I 15 6 she had had nile. 22 23 24 Q So. Correct. So when you or any other manager luok hack to see, you know, when you want to look at the l)ersonal history or record ot'an employee like Ms. Wallis for whatever considerations you want to look, if YOU pulled up her persoii I Page II 1 I 2 3 4 5 Q All right. If you do. just let me know arid I will -we'll be happY to give one to you. I will try to move ahead here. Now, when Ms. Wallis returns returned to work, how 6 V long was she -- did she have this Level S deferred hanging over 9 lit her head as for as whether or no I th at could be considered for Iliture disciplme or looked at? II MR flRAFF; Ohjeotbundation. I2 14 I doni know whether it was a one year level S or a uliie year t.evel S. I would have to go back and look at the I-I IS record. IS 16 20 Q Right. And isn't it true back at one time whether it was a one year or three year had soniet h ing to do with whether someone had a personal injiiiy within the last year or two? A Not to my-Q Isn't that one of the things that made it a one or 20 21 three year? 2l 22 A Not to my knowledge, no. Q Where would you look to lind out ii' it's a one or a three year tunic limit for someone like Ms. Wallis' A It would be under discipli lie fir her on her personal 23 24 I7 IS 19 23 24 25 A . .- MR. ORAl]: Object to lack ol' foundation. Yes. It would show on liei personal record that ll A No, I think I ant okay. ., A 21 25 ant good. Q l)o you need a break? 12 13 terminated, correct? -" 4) would also apply for promotions or other tianstrsIie Iti \lOLl the PtiI'P05e is. A I'm -- I'm sure that they could be used for that, 25 least a year, would you agree with that, that she had the ' 2nd Level S deferred assessment coulJ I7 22 24 W or.three years t'or a initially br a time alter Ms. Wallis's iiicudnt-.there's at A I lie Level S would have -- would have been ouu her record fir at least a year. \ id then it' she got another I .evel S during that year depending upon what '- wlia i the Level S wa for, one ol' the options would have been ternhiii at ion, yes. Q And, in fact, the Level S stays ilie foct that she one stays on her record even to this day even though wlietlier it's a one year or a three year calculation, the 6iei that she received the level S is still on her record, 20 2I record. Or it would have been -- When she got her notification ol' diseip Ii tie, it would have been on that. Q It would have said how long? A Yes, sir. .-.. 3 16 I7 1S 19 22 25 iceoi'd aiid her '' her history of the company, you would see that she had a -- a I .e el S. correct? A If you pulled up her personal record, yes. you would be ahlc to see whether she had a Level S or not. isn't it true that BNSF has soinethinu Q ()Ia called availability and low Iuoui policies at titus tune'' A Yes. I lie) do have availability and low hour policy. Q l)o either ol' those ts o poliics alleet hostlers? A Yes. l'hcy would at'tiet hosttçrs. Q Okay. A id et mId you cx phi iii to us how the low hours policy works? A 'the k hours policy would work as -- Ihey are -- A person us measured with their wor group. And under -- under that iuieasureinent, It ould look at the high end :ind the low end of the work gi'oup to see hours worked. And then it they lIi below the low end or [he median end, they eotil d Ii II under the low hours category. Q ( )kay. Now, ant I correct that reports are sent tiiit to managing officials at BNSF Oil either a monthly or a diftërent li:isis that will say here's the employees who are ill the lowt 5 percent. Ilir instance. ol' hours worked compared to others' Is there some type of criteria like that? A Yes. There is -. I believe it's monthly they're sent out a low hours report so that they know iii their work group . . 30 (Pages 114 to 117) Merrill ('orporalion 877-489-0367 www.mcrrillcorp.com/law JEFFREY RECK 9/6/2013 It S I 2 who the employees are that are not working the saute amount of hours as their peers, so low Imurs.es. Ptug 2 MR. GRAI:F: Objection. Calls br speculation. Lack of foundation. .1 A No. It would not work that way, bitt she is allowed so tnauiaays okti'i top of her lest days iid still be within Q Well, isn't it true the railroad indtiiiasciin over the years that employees used to be able to lay off much S mote titan they can now due to either low hours or availabillt\ ( policies? 7 MR. GRAFF: Object to kick nt foundation. S A The -- ihe old -- t.to answer your question. yes. that 9 one time in the railroad industry eiiiplovec were allowed to lay It oil' pretty much when they wanted to. Now that's changed bccautse of guatanteed extra boards whemhey're paid to slav 12 to mark UI) SO we have people availabIeork extra. lhat' 13 changed ui the training poi ucies and -- and just in the I4 policies foi all at I inads that -- that have beeti nov Hg 15 forward thtouiuh the years. I6 Q Well. heres the question I got. for instance. for 17 someone like Ms. Woilis. ii she wants to know wh:it the iniotiup IS nuitthcr ol hours she uiceds to work a wck tIEC. is there a 19 minimum number ol hours? Is It 40 or is it 50? 1, there a 20 minimum so that sIte knows that ito matter what. she will be 21 considered a full-time employee and not be suibiect to 4 I 22 dtscmpltiie? 5 6 7 8 9 10 II 12 I3 I-I IS 16 17 18 19 20 21 22 23 24 25 MR. GRAFF: Objection. Calls for speculation 24 Tack of lbundatioit. lhc a :itlahilttv policy would state that somebody 25 A 23 I he availability policy is btutlt oti a 90 day the polic rolling period. So in all actuality they have three days and a 90 day pertod. Si) with what you're asking i fshe had taken it other time oft' but her -- but her regular das oti then site would have three other days and stt II would not count against the availability policy. Q Well, what i I' she has -- she's a single parent? What if she has child care needs and wants to ccl -- to take some t tme -- take time oh)' for somiietht to for her child, does -- do cuiplovers -- the managers have sonic discretion whether or nut to allow her to do that or not? A She has tile ability to tile for Family Medical Leave Act that would -- If-- it there is something that her child needs, employees do that. Atid that little doesn't count against availability or low hours. Q But if she can't anticipate ahead like -- like. let's say, some itight if she was going to take her child over to -to someone else. another -- a person for -- to take care tut the child and that person is not available and she has a. yoti know. ii need to take care ol'her child, how does-- what discretion. mt any, do RNSF supervisors have to liv to aecutnuuiodatc her tutu Page 119 tltat has a regitlar job such as a hostler where they have set days oiL they have to be available 75 percent oh' the Itme. Pumge 121 I 2 Q Okay. And isn't it true tinder the availability 4 6 II) flare-up ofa medical condition and had a doctors note, thu doctors note alone is nice to have but does nrmt excuse an employee from work tinder the availability potic MR. (iRAFF: Saute ohteetioti. A I -. I don't remember that heinv sent out. but that II would probably be a true sItu tettietit 7 9 her family other Ilituti lilino l'or Medical -- I'or Family Medicti I leave'? MR. c;RAI:F: (.)hjection. Incomplete hypothetical 3 1)1)1 icy that one of the notes tli:ut was sent out t ti the North west Division stated iltat if an employee, for instamice, find a 4 a 120 S Cal Is for speculation and lack of' Ii 'unclation. A In that -- in that particular case she would neeto 10 lay oft sick if she -- ml sIte litus t iuuliody to take care of' her -- her child, lay ol'l' sick, and then go in and explain it to -- to the officer. Again, if she's -- it she's not habitual at this and she still has three days every -- in a rolling three day -- three month period, you should -- we should be 7 S 9 11 able to accominnoda Ic thu I wit hoot being in Irouble. Q Okay. So here's the qtiestion. Now -- And isn't 12 it -- So ii' Ms. Wallis is hack working. i ishe has ii flare-up 14 of her knee tnjtttv and she fulls either below either 15 availaht lily policy or low hours policy, isn't it true that 16 nut tiageinent otlic ials have some discretion in whether u r t it 17 charge her with the violation ol'etthcr of tluse l)(tlmCi'S'' 18 A Well. it v1s. Wallis had a lime-up other knee 19 injury, one. we would pro1ihly -- she s ould tusk br and be 20 granted medical leave And medical leave does tIqt COUflt itt tilt. 2! availability or the low hours. 'I, Q How do you if-- How do you -- How does an employee 23 know when he or she is going to have a hare-up of' their knee 24 if it's oiily a cott1)k of days'? Does medical leave work that 13 Q But again -- but agi,.theic is -- theme is some discretion on (lie part ol'managc'is as lo \i helhet to iint uii employee such as Ms. \\'tul li. you know, certain things,iiitue ol'l', either ho -- iii cumpliuutre \ ilk low hours or availability policies. Is that fuir to say'! 12 13 way'? 14 15 16 MR. GRAIl: Same objections. 17 I8 19 21) 2I 22 23 24 25 A II I here - - If -- if' it doesn't ta! I under one of' the tither things that I have discussed. theti yes, I would say thaI the local officer w oLild have discretion. Now, in order to havt. ilitut discretion. theyie probably going to have to talk to their supervisor arid possibly go till Ihe way tip to the general nianager to get that -- that discretion. Q Well, do you know whether or not which oil leers -- ( )i who would she contact, for instance, it' she finds out her child l (Pages 118 to 121) Mcirm II (orporiit ion 877-489-0367 www.merriIlcorp.com/law .FFFFRFY HECK 9'ô!20I3 Page 122 I they're going Co exercise thscreiiomt in her liuvor or 1101 on needs soinethiu tonight on short notice, who (toes she call? 7 issues like low iioui's or availability. collect? MR. GRAFF: Objection. Argtmrnentaiive. Calls for speculation. Incomplete hypothetical A there is a lot. We have several employees that have had injury turned iii iiiiuiv meports. I -- Me pcist'nally. I ant not going to judge whether I give somebody a break on S availability ha.',ed on them wnhmn in a personal bmjury. One 9 doesn't hai e anthintz Lii do wtih ihe other as tiir as I'm 0 concerned. MR. GRAI:F; Saille objections. Incomplete 2 hypothetical. A She would -- she would lay oil' to the call ollice. 4 6 The call office would lay her ott Ifthc -- it' the-- Say her child is sick, they would lay her oil sickness and liinily. 6 7 Then -- 3 4 5 Q 9 0 I Page 124 I 12 Is -- is there some -- is there a code sickness and family that she could lay off tn? A Yes. Q Or would she lust lay oIl' sick? A No. She's got a --There's sickness and Iiuniy.-- I 4 15 Q Therei. It dc in tle for I3 -- 14 AYes. IS ho all Q Well. lint ould be nice, the managers at BNSF are acting or not acting? You're in Foii \Vorth miu I ho do you kmios what the guys at Seattle or the mcii or women that are managers. hoss they're acting and o heiher or not they're atIxicd by such things as their ICP bonus? MR. Ci RAM": Objection. Argumentative. Calls . 17 Q And is that disci cut u.n y Lhii on the -- on rnnnnci s'? ll'shc lays nil sickness and titiIy, is she subleet to someone 17 t'or speculation. 18 not approving that and then being subject to invest igat ion? 18 24 A the -- i he only thing that I can say is that -- that all the managers thai I have worked around have had a mu nt ioiegritv. And I c;iut'i think ol' anybody i it my mind thai would use somebody that is -- has had a personal injuiy as based on their availtihi lily. I men it a personal mi uiy is -- is one thing thafs happened. You know, we take care of' that situatIon. Amid then availability is someihing completely 25 ditThrent. 6 MR. GRAIl': Same obiections. Calls for 19 20 21 22 23 24 25 speculation. lack ol foil ida t iou It) possible that she would he directed to a supervisor to explain what was going on. She would explain it. lucy would approve it. She would he able to take care of' whatcvei' hei' needs were. And then jilt becomes habitual, then she would 1)rohahly -l'.i I 2 3 4 5 6 7 9 10 II I2 I3 I4 IS 16 I7 18 19 21) 21 22 23 24 25 20 t uicomplcie hypothetical. A It would-- Sickness md !aniitvlayingfl sick, it's 23 I'age 125 I2. sIte would probably eel niL invcstieation notice for being in lily. Now, then that there -- there in lies the discretion of the super-- supervisor to if they have knowledge of what's going on and they can work her through the policy. lt'it's -- it' it's -- if it is her -- her child that's sick several times, then maybe there is FM I .A that needs to be got o she needs to get. If it's something with herselt' and -- and medical leave qualifies, they will -- they will help her with tilling out the paperwork for medical leave. But -- Go ahead Excuse me. Are Were any written either -- When I Q say written, that's in wrilinim or electronic advice, uidanec. rules. poi Ides for managers to tell t lien i when and how Jo exercise (hseret inn for employees tinder either ivai lability or low hours? A 'l'here is some written guidelines on the availability policy. And one of the lines that comes to mind is that you can't he wooden and rigid about dealing with employees that -that have issues that -- that you need to uiidcistand and histeut to what they have gui going on and then -- theui help them through the process. Q I am lion i liar wit lithe -- that iii a ringers are not supposed to be wooden and rigid. but hei'c's the problem for someone like Ms. Wallis. It' she's turned in a personal mntury i'cport. you would agree that she is somewhat at the mercy of' the interpretation ut managers at I3NSF as to liether or not avail au 11 1 4 5 '6 7 8 MR. J (JNGBAUER: Okay. Counsel, wc'i'c just about at Iwo o'clock. I think we have to -- l'he court reporter has advised that we iced to give up the room today. I can finish -- I would like to i'esei've depending on what the Court rules on certain items the ahi lily to take the witness or contimie the deposition of the witness. Otherwise, if you waitt to either tell him to read and sign or not read and sign lbr wIt at we have thus thi', that's line with rite. MR. (IRAII': Yeah. \Ve will reserve signature. 9 It) II 12 14 IS 6 17 IS MR. JtJN(IIIAtJFR: All right. 19 THE Vl[)EOGRAPHER: This marks the -- This mark 20 21 22 23 24 I have spoken to the court repoiler about that. To the extent Counsel seeks to renew, I would also just comment that we are here. We're available to ans\ver any questions. We will object to a continuation of this deposi Li nfl. It was under opposing counsel's control how long they i'esci'ved particular rooms foi' )u r iinderstaodinc is that we had another deposit ion scheduled by opposing cotinsel at two o'clock today. That was cancelled at literally the last minute. but that's line. We will reserve signature. the end ni' tape number two and the conclusion ol todays videotaped deposition. We're oil the record. 'l'he time now is 1:55 p.m. (l)eposition concluded at 1:55 p.m.) 25 32 (Pages L2 to I2) Merrill ('orporation 877-489-0367 www. merril Icorp.coni/law JEFFREY BECK 9/612013 Pz CERIlI-ICATE ( I. Rhonda Meai. Cern ticd Shorthand Reporter in and fbi the State of lexas. before whom I he foregoing deposition was taken, do hereby certify: That prior to being examined, the witness was duly sworn to testify the truth. the whole tiut Ii and noth me but the 7 truth: 2 3 4 5 That the fbreoiii transcript is a true and correct iecoid of the testimony given: 10 Ihat said testimony was taken by me stenographically and thercafier rcduced to typewriting under my supervision: 12 Ihat belore the completion of the deposition. revies of 13 the transcmipt was waived: 14 Ihat I am neither counsel for, related to. nor employed by IS any of the parties to this case and have no Interest, financial 16 or otherwise, in its otitcome. t 9 I I 17 1 I Certified to by me, this 11th day of September. 2013. 19 20 21 RIIONDA MEARS. CSR 365 23 Expiration Date: 12-3 1-14 MERRILL CORPORAIION Finn Registration No. I 91 4144 N. Central Expressway Suite 850 Dallas, TX 75204 214-720-4567 -'S 3 (Page 126) v1eri'ilI Corporation 877-489-0367 vww.tnerrtI1corp.coniu1aw