Shortly after 11:00 A.M. on October 23, 2000, Assistant General Mechanical Foreman Elsenpeter and Carman W. C. Honadel (the Claimant) were dispatched to East Helena to examine a damaged rail car, after which Elsenpeter determined that the car needed to be sent back to Helena for repair. To accomplish same, Elsenpeter directed the Claimant to do the following:
Thereafter, Messrs Elsenpeter and Honadel returned to Helena where the Claimant retrieved material and equipment for his assignment.
According to the Claimant's testimony, when he returned to repair the disabled rail car, he attempted to use the track jack to lift the center sill, but was unable to do so, instead opting to use the lift on his boom truck. After the Claimant followed the initial instruction, however, he disregarded Elsenpeter's directive to use a track jack to support the weight of the gear pan. Instead, the Claimant climbed under the car, and lying on his back, raised his legs and using the force of his lower body and hands the Claimant attempted to move the gear pan. When he did so, the Claimant reported that he "felt a pain" in his lower back. Thereafter, when he returned to Helena, the Claimant was transported to the hospital where he was examined and given a prescription for pain.
As a result of the incident, by notice dated October 27, 2000, the Claimant was instructed to attend a fact finding in connection with the alleged October 23 back injury. Following the November 2, 2000 Investigation, the Carrier informed the Claimant that:
The Organization protested the censure, maintaining that, in accordance with Article 13, paragraph F, the discipline should be expunged from the Claimant's record. Specifically, the General Chairman contended that the Carrier failed to prove that the Claimant violated the Rules for which he was cited.
The Carrier denied the claim, asserting that the Claimant failed to follow his supervisor's instruction to place a jack under the gear pan. Instead, according to the Carrier, the Claimant "neglected to plan his work to avoid injury" in accordance with General Safety Rule 1.1.2, and did not "take the safe course" as provided for in General Safety Rule 1.1.1.
At the outset, the Claimant denied that Elsenpeter had instructed him to use a track jack to move the gear pan into place. For his part, Elsenpeter stated, unequivocally, that he had specifically instructed the Claimant to: "Place a second jack under the gear pan to absorb its weight."
Reduced to its essence, this case presents conflicting testimony from the Foreman and the Claimant concerning whether the Claimant was told to "place a second jack under the gear pan." In railroad arbitration, this Board is an appellant arbitration tribunal and we are unable to make credibility determinations from a cold transcript. The Carrier evidently accepted Foreman Elsenpeter's version of events, rather than that of the Claimant's, and there is nothing in this record which presents any valid basis for us to second guess that judgement. In short, the Carrier adduced sufficient evidence to support its determination that the Claimant was culpable as charged and there is no showing that a letter of censure was harsh, unreasonable or excessive disciplinary action.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.