Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
The Second Division consisted of the regular members and in
addition Referee Martin H. Malin when award was rendered.
(Sheet Metal Workers International
( Association
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former
( Baltimore & Ohio Chicago Terminal Railroad
( Company)
Ill.
The Carrier violated the provisions of the
current and controlling agreement, when on
January 24, 1992 they improperly suspended
Sheet Metal Worker Roger Barry for five days
following an investigation that was held on
(~'' January 13, 1992. The five day suspension
would be served upon Mr. Barry's return to
work following an injury.
2. That accordingly, the Carrier be directed to
compensate Sheet Metal Worker Barry for five
days pay.-at the pro rata rate and further,
compensate Mr. Barry for any overtime or
Holiday Pay he may have been deprived of due
to his improper and unjust suspension."
FINDINGS:
The Second Division of the Adjustment Board, upon the whole
record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved
in this dispute are respectively carrier and employees 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 were given due notice of hearing
thereon.
Form 1 Award No. 12802
Page 2 Docket No. 12607
95-2-92-2-146
On December 23, 1991, Claimant was notified of an
Investigation, to be held January 13, 1992, concerning Claimant's
"... responsibility, if any, in connection with your personal
injury at Milepost 27.0, Chicago Division, McCook Subdivision,
Argo, Illinois, at or about 1515 hours, CSX Standard Time on
December 10, 1991.1' The Investigation was held as scheduled, and
on January 24, 1992, Claimant was notified that he would be
suspended for five days.
The organization contends that Claimant was denied a fair
hearing. The organization argues that Carrier did not charge
Claimant with any specific Rule violation and characterizes the
Investigation as a "fishing expedition."
The Organization also contends that Carrier failed to carry
its burden of proving Claimant's guilt of the charges against him.
The Organization contends that there. was no set procedure for
performing the work Claimant was doing at the time of the accident.
The organization further argues that Carrier could only speculate
as to how Claimant could have performed the task in question more
(~'~'` safely. The Organization cites several Awards involving this
---= Carrier in which claims arising out of discipline for alleged
safety violations in connection with personal injuries were
sustained in whole or in part.
Carrier contends that the Notice of Investigation gave
Claimant proper notice of the precise charge. Carrier maintains
that the Agreement does not require that the Notice of
Investigation cite a specific Rule. Carrier further argues that it
proved that Claimant's carelessness led to his injury. Carrier
contends that Claimant admitted that he failed to give sufficient
thought to how to accomplish the task in question and failed to ask
for help.
The Board reviewed the Notice of the Investigation, which is
quoted in relevant part above. Rule 26 of the Agreement does not
expressly require that a Notice of Investigation specify the Rule
allegedly violated. Rather, it requires that Claimant ". . . be
apprised of the precise charge . . . ." The notice in the instant
case apprised Claimant of the date, time, location and specifics of
the incident under Investigation. It further apprised Claimant
that the Investigation was to determine his responsibility in
connection with the specified incident. The notice was sufficient
to enable Claimant to prepare for the Investigation and present a
defense. We find no violation of Rule 26.
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Forth 1 Award No. 12 8 0 2
Page 3 Docket No. 12607
_ 95-2-92-2-146
We reviewed the record and, based on that review, find that
substantial evidence supports the conclusion that Carrier proved
the charge against Claimant. Recognizing that each case of this
type must be evaluated on its specific facts and record, we
reviewed the Awards cited by the Organization and find them not to
be controlling.
In Second Division Award 12413, Carrier alleged that Claimant
injured himself by jumping from a locomotive roof. Claimant
testified that he stepped from the roof and did not jump. There
was no evidence that Claimant jumped, and the Board sustained the
claim because of the lack of such evidence. Similarly, in Second
Division Award 12147, there was evidence only of an injury and no
evidence of any misconduct by Claimant causing that injury. As
developed below, there is no question in the instant case as to
what Claimant's conduct was; the only issue is whether that conduct
was sufficiently careless to warrant the discipline imposed.
In Second Division Award 12325, Claimant requested the
equipment necessary to perform the job safely and the equipment was
'·'°' not available. In Second Division Award 12309, Claimant was found
negligent, but his five day suspension was reduced to one day
because Carrier contributed to Claimant's injury by failing to warn
him of a potential safety hazard and because a second employee's
action also contributed to the injury.
In the case at hand, there is no dispute over what happened.
Claimant was operating a backhoe in connection with the
installation of gas lines. Toward the end of the day, Claimant had
to move a two foot trenching bucket to a secure location. The
bucket weighed 200 to 300 pounds.
Usually, to accomplish this task, one would use the six foot
scoop bucket attached to the backhoe to scoop up the smaller bucket
and move it. On the date in question, however, the two foot bucket
was on a raised concrete and steel platform, precluding the
Claimant from scooping it up with the larger bucket. Consequently,
Claimant lowered the six foot bucket down by the two foot bucket,
got off the backhoe and, using his hands, tried to slide the
smaller bucket into the larger one. In the process, Claimant's
finger got caught between the two buckets and was broken.
Two Foremen testified. The Foreman who gave Claimant the
assignment testified that he did not believe that the Claimant
would need help in performing the task because he expected Claimant
to use the machine to move the bucket. However, he told the
Claimant to return and get another employee if he needed help.
Claimant did not return for help.
The second Foreman testified that Claimant could have used the
backhoe to shove the smaller bucket off the cement and then he
could have scooped it up with the larger bucket. Claimant
testified that he chose to move the smaller bucket with his hand
because that seemed to him to be the easiest way to do it.
Although there is no dispute over what happened on December
10, 1991, the parties do dispute whether Claimant's actions can be
characterized as careless or unsafe. Claimant was experienced in
operating a backhoe. He knew that the small bucket weighed over
200 pounds and could cause injury. The method he chose to move the
bucket may have been the easiest way, but it clearly was not the
safest. Claimant should have paid more attention to safety and to
minimizing the odds of injury. In light of the uncontradicted
evidence in the record, we cannot say that Claimant's suspension
was arbitrary, capricious or excessive.
AWARD
Claim denied.
O R D E R
This Board, after consideration of the dispute identified
above, hereby orders that an award favorable to the Claimant (s) not
be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 26th day of January 1995.
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