Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12224
SECOND DIVISION Docket No. 11985
92-2-90-2-90
The Second Division consisted of the regular members and in
addition Referee Robert 0. Harris when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE:
(Missouri Pacific Railroad Company
STATEMENT OF CLAIM:
1. That the Missouri Pacific Railroad Company violated Rule 31 of
the September 1, 1981 Agreement when they arbitrarily, unjustly and capriciously suspended and censured Carman J. L. Anderson March 10, 1989.
2. That the Missouri Pacific Railroad Company be ordered to compensate Carman J. L. Anderson as follows:
A. Returned to service with seniority rights unimpaired.
B. Made whole for all vacation rights.
C. Made whole for all health and welfare and insurance benefits.
D. Made whole for all pension benefits, including railroad
retirement and unemployment insurance.
E. Pay for all time lost, including all time for holiday pay and
all other compensation, for overtime that he would have
received from March 10, 1989 until returned to service on
March 23, 1989 and further, that his record be cleared of the
thirty (30) day deferred suspension that began March 24, 1989.
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 employes 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 was charged with being insubordinate when instructed by his
Foreman to assist in moving break beams from a pallet to the safety brake beam
rack. He was also charged with failing to properly lift the brake beam in
accordance with pro-back lifting techniques which resulted in an alleged injury to a fellow worker. After hearing, Claimant was given a ten-day actual
suspension and thirty days' deferred suspension.
Form 1 Award No. 12224
Page 2 Docket No. 11985
92-2-90-2-90
The questions before this Board are whether there is substantial
evidence to support the Carrier findings and whether if there are, the penalty
assessed is appropriate.
It is undisputed that Claimant had been instructed in proper back
lifting techniques. At the hearing, one of his fellow workers, who was not
directly involved in the incident but was witness to it, testified:
"As I was doing my work assignment, I had to go
around the end of the car to pick up some brake
shoes and as I went around the end of the car to go
to the knuckle high table where the brake shoes were
located, I observed James Mercer and [claimant] were
putting brake beams from a pallet on the floor into
the brake beam rack. At that time, James Mercer
picked up the beam and walked around the rack,
[claimant], he picked the beam up, he turned partially and he slung the beam into the rack."
Another employee, who indicated that he had a muscle strain from
Claimant's allegedly improper handling of the beam, testified when asked
whether Claimant had performed his duties in accordance with Carrier safety
standards:
"That is a hard question to answer. When the brake
beam dropped, I honestly can't say that he did it
intentionally. So, to answer that, one would have
to know if [claimant] intentionally threw the beam or
if it was possible that it slipped from his hands.
Since I didn't ask him, I have no way of knowing."
Claimant testified that he did not remember the incident and so was
unable to recall any details of what occurred.
From the evidence presented at the hearing, it is clear that Claimant
did not follow approved pro-back techniques in his handling of the brake beam.
Claimant was also charged with being insubordinate when instructed by
his Foreman to assist in moving break beams from a pallet to the safety brake
beam rack. The evidence regarding this charge is the testimony of his Foreman, who stated:
"I asked [claimant] to assist Jim Mercer in stacking
brake beams from the pallet to the brake beam rack,
he made the statement that he thought it was unnecessary due to the fact that they were using brake
beams on the other side of the truck shop. That was
that was said."
low
Form 1 Award No. 12224
Page 3 Docket No. 11985
92-2-90-2-90
The Foreman then, in response to the question, "In this conversation
did [claimant] appear to be normal, quarrelsome or angered," answered:
"Yes, sir. He seemed to be angered. But he did go
ahead and assist Jim Mercer."
The coemployee stated that he never heard Claimant become "belligerent and threatening" to the Foreman.
The evidence adduced at the hearing does not support the charge that
Claimant was insubordinate. The question then is whether the Carrier-assessed
penalty is appropriate under the circumstances of this case.
The Carrier has stated that it considers this a serious offense. However, the injured worker did not take any time off, did not consult a doctor
and did not file an accident report until required to do so by his supervisor.
That the coemployee was injured by the carelessness of Claimant cannot be
denied. No one has any proof it was deliberate and while Claimant did not
follow pro-back procedures, that failure does not warrant the penalty assessed
against him. The suspension will be reduced to one day, with no additional
deferred time, and Claimant will be made whole for lost wages and other`benefits as a result of Carrier's assessment of a greater penalty.
A
W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
"Nancy J. a -Executive Secretary
Dated at Chicago, Illinois, this 8th day of January 1992.