Form 1 NATIONAL RAILROAD ADJUSTr1ENT BOARD Award No. 9498
SECOND DIVISION Docket No. 9667
2-BN-CM-'83
The Second Division consisted of the regular members and in
addition Referee Francis M. Mulligan when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Burlington Northern Railway Company
Dispute: Claim of Employes
1) That the Burlington Northern, Inc. violated the terms of the controlling
agreement, particularly Rule
35,
when they suspended Laurel, Montana
Carman P. T. Callahan for a period of five
(5)
days pursuant to an
investigation held August
13,
1980.
2) That accordingly, the Burlington Northern, Inc. be ordered to compensate
Carman P. T. Callahan in the amount of eight (8) hours at the straight
time rate of pay for each work day withheld from service commencing
September 1, 1980, to and including 7:00 A.M. September 6, 1980.
In addition, P. T. Callahan be made whole for any other benefits he
would have earned and that the entry of censure be removed from his
personal file.
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, 1934.
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, P. T. Callahan, had been an employe of the Burlington Northern, Inc.
for over three (3) years. At the time of his suspension, he was working at the
laurel, Montana complex which consists of a facility employing approximately five:
hundred (500) carmen and their apprentices and various other shop craft mechanics.
The facility is the carrier's largest coal car repair shop and adjacent to the
coal car repair shop, there is a Repair Track, a One-spot Repair and a 'brain Yard.
On July 14, 1980, Claimant was notified to arrange to attend a formal investigation
on July 21, 1980, for the purpose of ascertaining the facts and determining
Claimant's responsibility in connection with his alleged failure to wear safety
glasses while in a posted safety glass area on July 8, 1980. Thereafter, the
hearing was postponed by a letter of July
18, 1980
until August
13, 1930
at
8 :00 a.m.
Form 1 Award No. 9498
Page 2 Docket No.
9667
2-BN-CM-'83
The investigation was ultimately held as scheduled on August
13,
1980 at
8:00 a.m. Following the investigation, Claimant was notified by letter dated
August 29, 1980 that he would be disciplined for violation of Burlington
Northern, Inc. Safety Rules 640 and 641 for a period of five (5) days effective
11:00 a.m., September 1, 1980 to and including
7:00
a.m., September
6,
1980 for
failure to wear safety glasses in a posted safety glass area on July 9, 1980 in
violation of the aforesaid Rules. In addition, an entry was made in the Claimant's
personal record to the effect that he was suspended for five (5) days for failure
to wear safety glasses in a posted safety glass area.
The record establishes that the Claimant was working in an area
which
was
posted to require employes to wear safety glasses. Car Foreman, J. T. Surma
instructed the Claimant to wear the safety glasses and to keep them on while
working. This instruction was repeated three (3) times. The first instance was
at 12:05 a.m.; thereafter, at 2:05 a.m.; and thereafter at 2:25 a.m. On each
occasion, the Claimant was not wearing his safety glasses. On each of these
occasions, Mr. Callahan was working at his station on East 3. On none of these
occasions were his safety glasses covering his eyes. The first time, they were
in his hands. On the other two (2) occasions, they were folded in his coverall
pocket. The type of activity in the work area was burning, riveting, decking
and general heavy repairs.
There is evidence in the record that Claimant's Foreman had told Claimant,
prior to this occasion, about the necessity and importance of the wearing of
safety glasses in posted safety glass areas. There is nothing in the record to
indicate that Rules 640 and 641 would not apply in the area in question. The
real issue in mitigation on behalf of the Claimant is the fact that there was
unrebutted testimony to the effect that a number of other persons were in the
area without safety glasses. The Claimant's principle witness stated that he had
observed at least seventy
(705)
per cent of the whole Big Shop without safety
glasses. The organization raises the issue of discriminatory enforcement of the
Rule. The Board's concern is with the paramount importance of the-safety
rules. P. T. Callahan was told several times to wear safety glasses. We do not
know what warnings were given to others. The Car Foreman, on three
(3)
separate
occasions, advised him to use his safety glasses.
As stated in
Public Law Board No. 2566, Award No. 2, (Carter):
"It is the opinion of this Board that in railroad operations
of any kind, safety is of primary importance. In order to
properly carry out its operations, Carrier must insist that
its employes faithfully and carefully execute the responsibilities which develop upon them."
All other issues raised in this appeal, including the unfairness of the
hearing, are not substantiated by the organization. The suspension will be
upheld for three
(3)
of the five (5) days. Mitigating circumstances exist.
Others in the shop were without the glasses at the same time. No penalty was
imposed on anyone else. The rule should apply across the board.
Form 1
Page
3
Attest: Acting Executive Secretary
National Railroad Adjustment Board
Award No. 9498
Docket No.
9667
2-BN-CM-'83
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 25th day of May, 1983.