C:\MYDOCU~1\SCHEDU~2\3-26870.htm

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26870 THIRD DIVISION Docket No. MW-27532 88-3-86-3-791 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Delaware and Hudson Railway Company STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that: (1) The fifteen (15) day deferred suspension imposed upon Bus Driver/Trackman M. Carter for alleged '... failure to comply with GTI Safety Rules GR-A, SE-10 and S-31.' was without just and sufficient cause, on the basis of unproven charges and in violation of the Agreement (System File BMWE-12-86). (2) The claimant's record shall be cleared of the charges leveled against him and he shall be compensated for any wage loss suffered." FINDINGS: The Third 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.

By letter dated October 23, 1985, Claimant, a bus driver/trackman with approximately 16 months service, was directed to report for a Hearing in connection with the following charges:

"1. Causing personal injury to James Cooper from a blow he received to the head from a maul you were using to apply rail anchors at Oneonta N. Y. on October 22, 1985.

2. Your direct failure to comply with GTI Safety Rules GR-A, SE-10 and S-31."

The involved Safety Rules read as follows:

Form 1 Award No. 26870 Page 2 Docket No. MW-27532 88-3-86-3-791

Safety Rule GR-A

"Employes must be conversant with and obey all rules and special instructions."

Safety Rule SE-10

"When handling hammer, maul, pick, shovel, etc. be sure there is sufficient room to do so without striking anyone or anything."

Safety Rule S-31

"Before and while working below, above or near one another, employees in each position must notify the other of their whereabouts and make adequate provisions for each other's safety. Standing on anything which makes one's position insecure is prohibited."

Following the Hearing, which was ultimately held on November 21, 1985, Claimant was assessed a 15 day deferred suspension. The record contains substantial probative evidence in support of the Carrier's determination that Claimant was responsible as charged. Claimant admitted that it was his responsibility, when using a himself and fellow employees so as to avoid injury to himself or others. Claimant's failure to position himself a safe distance away from his co-worker resulted in the latter's personal injury. Over the years, all Divisions of this Board have consistently ruled that employee responsibility cannot be avoided by shifting the blame to supervisors or other employe actions and job performance. (See Second Division Awards 9151 and 6538.)

A W A R D

Claim denied. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attest: Nancy J ver - Executive Secretary Dated at Chicago, Illinois, this 25th day of February 1988.