Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9092
SECOND DIVISION Docket No.
91+0
2-B&O-CM-'82
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( Brotherhood Railway Cayman of the United States
Parties to Dispute: ( and Canada
(
( Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
No. 1. That Carrier violated the provisions as set forth in the Book of
Safety Rules, effective October 1,
1968,
GENERAL NOTICE, Sections (A)
and (H), and in so doing, flagrantly misused and abused, and directly
violated Claimant's contractual rights, when on the date 'of April lI,
1979,
at East St. Louis, Illinois, Cayman, Emil R. Pulse, Claimant, in
definite concern for his own safety, including life and limb, deemed
the work he was performing on the above date to be hazardous and
perilous, in view of the unnatural and inclement weather conditions
existing, and requested of his Supervisor that he be allowed, temporarily,
to discontinue his assignment of working with 220 volt electrical
wrenches, such request instantaneously refused, resulting in Cayman Pulse
being forced to mark off duty for the remainder
of
his work day and a
junior employee allowed, arbitrarily, to perform Claimant's duties, thus
violating Claimant's seniority rights, as per the Controlling Agreement.
No. 2. That accordingly, Carrier be ordered to compensate Claimant for all
time lost account of this particular incident, specifically four
(4)
and one-half hours, at the regular carmans rate of pay, and that Carrier
be severely reprimanded for their non-compliance to the provisions as
per the Book of Safety Rules, effective October 1,
1968.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that
The carrier or carriers and the employe or employes-involved in this dispute
are respectively carrier and employe within the meaning of the Railway Labor Act
as approved June 21,
193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was working his regular second shift assignment on the trailer ramp
on April 11,
1979
when he asked his Foreman if he could stop working until a
heavy rain subsided. The Foreman responded that Claimant should either return to
work or mark off. Claimant then marked off and went home after working only three
and one half hours of his shift. Claimant now seeks payment for the remaining
four and one half hours of his April 11,
1979
shift.
Form I
Page 2
Award No. 9092
Docket No. 9140
2-B8e0-CM-' 82
According to the Organization, the rainstorm with lightning created a hazard
imperiling Claimant's safety and welfare because Claimant was operating an
electrical wrench. The Organization cites general safety rules to support its
contention that Claimant had a right to quit working when he determined, solely
on the basis of his personal judgment, that the inclement weather posed a threat
to his safety. The Carrier argues that the electrical wrenches had been previously
checked several times and were found safe to operate even when exposed to rain.
Also, the Carrier asserts that it did not force Claimant to mark off but rather
gave him an option to either
continue working
or to mark off. Claimant elected
to go home, and therefore, he must suffer the consequential loss of pay.
As a threshold issue, the Carrier urges us to dismiss the claim since the
Organization has purportedly failed to cite any rule on the property to support
the claim. However, the Organization on the property, did rely on-several safety
rules to justify the claim, so we will address the merits.
We note that this is a claim for time rather than an appeal from disciplinary
action. Thus, the burden of proof is squarely on the Organization to show
Claimant is entitled to be paid for~the remainder of his shift. Perhaps Claimant
sincerely believed that the working conditions on April II, 1979 were unsafe due
to severe weather conditions but that alone is insufficient to justify his refusal
to work. The Organization must also come forward with probative evidence
demonstrating, in an objective sense, that the weather posed an imminent threat
of substantial harm to his health and safety. Second Division Award No.
8390
(Mikrut); Third Division Awards No. 22641 (Eischen) and No. 22157 (Weiss).
The circumstances in this case indicate that though there was heavy rain,
the health and safety of Claimant was not jeopardized. Claimant's fellow employees
continued working and the worker who replaced Claimant completed the remainder
of his assignment without any problems. The equipment Claimant was using had been
tested and certified for use in the rain. The inherent nature of railroad
operations often makes it necessary for employees to work in adverse or uncomfortable
weather conditions. In this case, Claimant voluntarily chose to quit working for
his own comfort instead of performing the remainder of his assignment. Thus, we
must deny the claim.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
-
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 19th day of
may, 1982.
NATIONAL RAILROAD ADETUSTMENT BOARD
By Order of Second Division