Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
.Award No. 31921
Docket No. MW-31452
97-3-93-3-440
The Third Division consisted of the regular members and in addition Referee
Nancy F. Murphy when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Kansas City Southern Railway Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline (letters of reprimand) imposed upon B&B Helpers L.
K. Renick and J. M. Taylor, for alleged violation
of
Rule
L of
the
Rules and Regulations for the Maintenance
of
Way and Signal
Department, in connection with an injury sustained by Mr. Renick
on November 18, 1991 was without just and sufficient cause, on the
basis of unproven charges and in violation
of
the Agreement
(Carrier's File 013.31-454).
(2) As a consequence of the violation referred to in Part (1) above, the
Claimants shall have the letters
of
reprimand and all reference
thereto removed from their records and they shall be compensated
for all wage loss suffered as a result
of
their attending an
investigation held on January 6, 1992."
FINDINGS:
The Third 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 employee within the meaning
of
the Railway Labor Act, as
approved June 21, 1934.
Form I Award No. 31921
Page 2 Docket No. MW-31452
97-3-93-3-440
This Division of theAdjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
L. Renick and J. TaN for (Claimants) were regularly assigned as Bridge and
Building (B&B) Helpers on B&B Gang 680, working under the supervision of B&B
Foreman Cagle. On November 18, 1991, Claimants were working at Mile Post 96.2,
near Eve, Missouri, driving wooden wedges between chains and bridge pilings, when
Claimant Renick sustained a personal injury, i.e., a fracture of the index finger of his
right hand.
On December 6, 1991, Claimants were instructed to appear for an Investigation
in connection with: "... the facts and determine your responsibility, if any, in connection
with the incident that occurred November 18, 1991, when B&B Helper L. Renick
allegedly sustained an occupational injury."
The Investigation was postponed and held on January 6, 1992, during which Mr.
Renick reported the following:
"Q. There were two (sedges that was involved between you and Mr.
Taylor, right'.
A. As I remember there were two of them under there.
Q. Two involved, and he was hitting on one and you were holding both
the wedges?
A. No, I was only holding one of them.
Q. What position on that wedge did you have your hand?
A. I had my hand on the wedge pushing up on it from the bottom of the
wedge to keep it from slipping back down because every time he hit
it, the wedge would slide back down and fall out. Every time that
he would hit the wedge that he was beating on.
Q. In other words, as he was tightening up the other wedge, this wedge
would try to fall out and you were trying to hold it in place?
A. Right. It had done fell out 2 or 3 times and I was trying to keep it
from falling back down.
Q. Okay. As he was hammering on this other wedge and you were
holding the wedge up that you had your hand on, did he give you
Form 1 Award No. 31921
Page 3 Docket No. 11lINV-31452
97-3-93-3-440
any indication that he was going to strike the wedge that you were
holding with the hammer?
A. No sir, he didn't, or I would have moved my hand.
Q. Is it normal to strike one wedge and then the other one or do you
just try to knock one in?
A. It could go either way
Q. You did have your work gloves on, I'm sure? Is that right?
A. No, I did not. And the reason I didn't have them on is because we
had climbed up on the pilings and those pilings were wet and my
gloves were muddy and wet. I had taken them off and laid them on
the scaffold."
Subsequent to the Investigation, each of the Claimants were notified of the
following:
"After a careful review and thorough examination of the transcript of the
formal investigation, it is my decision that you were in violation of Rule 'L'
of the Rules and Regulations of the Maintenance of Way and Signal
Department, effective July
4,
1982, as revised.
Accordingly, you are advised that discipline issued will be a letter of
written reprimand enter (sic) into your personal record file."
Rule L states, in pertinent part:
"Constant presence of mind to insure safety to themselves and others is the
primary duty of all employees and they must exercise care to avoid injury
to themselves
or
others. They must observe the condition of the equipment
and the tools which they use in performing their duties and if found
defective, will if practicable, put them in safe condition, reporting defects
to their foreman. Defective tools must not be used. Employees must
inform themselves as to the location of structure or obstruction where
clearances are close and must exercise caution at such locations to avoid
injury ...."
On March 10, 1992, the General Chairman submitted a claim on behalf of
Messrs. Renick and Taylor premised upon these assertions:
Form 1 Award No. 31921
Page 3 Docket No. NINV-31452
97-3-93-3-440
any indication that he was going to strike the wedge that you were
holding with the hammer?
A. No sir, he didn't, or I would have moved my hand.
Q. Is it normal to strike one wedge and then the other one or do you
just try to knock one in?
A. It could go either way
Q. You did have your work gloves on, I'm sure? Is that right?
A. No, I did not. And the reason I didn't have them on is because we
had climbed up on the pilings and those pilings were wet and my
gloves were muddy and wet. I had taken them off and laid them on
the scaffold."
Subsequent to the Investigation, each of the Claimants were notified of the
following:
"After a careful review and thorough examination of the transcript of the
formal investigation, it is my decision that you were in violation of Rule 'L'
of the Rules and Regulations of the Maintenance of Way and Signal
Department, effective July
4,
1982, as revised.
Accordingly, you are advised that discipline issued will be a letter of
written reprimand enter (sic) into your personal record file."
Rule L states, in pertinent part:
"Constant presence of mind to insure safety to themselves and others is the
primary duty of all employees and they must exercise care to avoid injury
to themselves or others. They must observe the condition of the equipment
and the tools which they use in performing their duties and if found
defective, will if practicable, put them in safe condition, reporting defects
to their foreman. Defective tools must not be used. Employees must
inform themselves as to the location of structure or obstruction where
clearances are close and must exercise caution at such locations to avoid
injury ...."
On March 10, 1992, the General Chairman submitted a claim on behalf of
Messrs. Renick and Taylor premised upon these assertions:
Form 1 award No. 31921
Page 4 Dockc· No. NINV-31452
97-3-1:3-3-.;40
"l. Carrier violated certain rules of the Agreement, especially Rule 13,
DISCIPLINE AND GRIEVANCES, in.that this discipline is
unwarranted and unjust.
2. Claimants were performing their duties with `utmost' attention to
safety, however, the gang was not provided with safe and proper
tools. Therefore, although Claimants may have been `somewhat of
a small part of a cause of an injury', they should be commended for
being able to perform their duties without the required safe, proper
and functional equipment.
3. Claimants have over a quarter of a century of unblemished service
between them."
Carrier denied the claims, maintaining that
"I do not agree with your statement that the Carrier does not supply safe
and proper equipment, or that Carrier put Mr. Renick in an unsafe
situation. If Mr. Renick was performing his duties with the utmost
attention to safety he would not have had his hand under the wedge; he
would have informed 11r. Taylor that he was holding the wedge with his
hand and where his hand was positioned. I do not feel that Mr. Renick
should be commended or rewarded for violating Rule U."
Carrier further maintained that Rule 13 was not violated, in that:
"1. Claimants were advised in writing of the cause for their disciplinary
action;
2. A hearing was held during which each of the Claimants were
represented and allowed to present their case;
3. A transcript of the hearing was furnished to the Organization, all
in compliance with Rule 13 of the Agreement."
Finally, Carrier noted that Claimants had attended a safety meeting
on
the very
morning that the injury occurred, and asserted the incident would not have taken place
had Claimants exercised appropriate caution.
Form 1 Award No. 31921
Page 5 Docket No. hIW-31452
97-3-93-3-440
After careful revie·~ of the record presented and Submissions of the Parties, we
find that the evidence does not support the Organization's contention that: 1) Carrier
violated Rule 13 of the Agreement; 2) Claimants were issued defective equipment; or,
3) The discipline assessed was unreasonably harsh.
With regard to the procedural issue related to Rule 13 of the Agreement, Carrier
maintained that each of the parameters set forth in Rule 13 of the Agreement,
concerning employee rights, was properly met. We did not find any discrepancies on
this record regarding Carrier's treatment of Claimants's rights throughout these
proceedings, nor did the Organization present any evidence in support of its contention.
Further, we did not find any showing that Claimants were expected to use
equipment which was faulty. Clearly, safe performance of the work at issue requires an
employees' undivided attention, in addition to clear communication. Although the injury
was unfortunate, and "accidents" do occur for which there can be no blame placed, we
find persuasive Carrier's argument that, in this particular case, the injury would not
have occurred had Claimants communicated with one another.
Finally, in all of the circumstances, we cannot find that Carrier's assessment of
a letter of reprimand to be unreasonable, harsh or excessive. It is indeed fortunate that
the injury which Claimant Renick sustained was not of a more serious nature. Carrier
has the right to expect each of its employees to exercise utmost caution in the
performance of their duties. Based on the foregoing, this claim must be denied.
AWARD
Claim denied.
ORDER
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 Third Division
Dated at Chicago, Illinois, this 4th day of March 1997.