At all material times herein the Claimant was a noci3 Truck Driver vath approximately 19 years of seniority.
The following day the pain worsened and the Claimant informed his Supervisor that he had hurt himself the previous day while moving ties. When asked by his Supervisor, the Claimant affirmed that he was removing the ties by hand and without assistance.
The next day the Claimant visited a physician and the Supervisor investigated the matter. In doing so the Supervisor learned from other crew members that the Claimant did in fact remove the ties by hand, instead of using tie tongs, and that he did so without assistance from other crew members and despite their urging that he refrain from doing so.
The Carrier QubSenllsentiv rharnrd the Claimant with violating rules relating to the reporting of injuries and the obligation of employees to work safely. Upon investigation on the property the Claimant was assessed a 30 day suspension.
The Organization contests the discipline on both procedural grounds and with respect to the merits of the charges leveled against the Claimant. The procedural attack consists of assertions that the charges were not adequately specific and that the Ca_rrier's anneal officer was predisposed as to the merits. We disagree. The record shows that the charges in this matter informed the Claimant that he was charged with a "failure to work in a safe manner which resulted in . . . injury . . . on January 4,1995." Since the record shows that there is no doubt that the injury took place on that day and that there was no other incident on that day or in near proximity to that day that -:ght otherwise confuse the Claimant. Finally, the record also shows that the neither the Claimant nor the Organization were encumbered in defending against the charge. With Form 1 Award No. 32486
regard to the other alleged procedural defect, the predisposition of the Carrier's Appeal Offfr_er_ we nnte that a_I_tho11uh the Organization is correct that he was also the Carrier
of these proceedings ...." is not supported by any rafts other luau ruunc. jns. ...._~Aha,.. Thus, a claim of any additional conduct on his part that might have tainted the proceedings is a mere assertion without basis in the record.
On the merits the Organization argues that the Claimant did not violate the rules cited by the Carrier or that there is no rule prohibiting the conduct engaged in by the Claimant. In the alternative, it contends that the record is insuffciently clear to meet
~_ ~__r!__r_ ~__-a__ Ir __...,ese...~ s1._ 0-:-a-4 -fnQOd a dir nr ar failed to move tue Ca a ,e1 s on, der, 01 Nr u111 that LIIe 0-i-a-4 .ef..s.,..
with the use of tie tongs. Finally, the Organization asserts that even if these arguments are rejected, the Carrier is guilty of disparate treatment in that other crew members also failed to use tie tongs and were not disciplined.
On the first point, the Organization is correct that although the Claimant was charged with failing to report the accident he did in fact do so and that the Carrier has no rule realuiring the ruse of tie tongs when mn~ing ties. However. the record is equally clear that there is a rule obligating the Claimant to work safely and attentively and that, moreover, other crew members cautioned him against moving ties by hand. Under these circumstances we conclude that the Claimant was sufficiently notified that he was about to do something improper. In addition, the record is clear that the Claimant adliaitted to his Supervisor that he did in fact move ties by hand and without using tie tongs. Thus, there is a sufficient basis to conclude that the Claimant consciously acted in an improper fashion. Although it might he true that the Supervisor's instructions lacked the force of a clear and direct order to "remove the ties using tie tongs," it is clear that the Supervisor's stated desire was that the Claimant do so, that the Claimant had many years of service that would form the basis for a conclusion that failing to use tie tongs was improper, and that again his own crew members advised him In the same trashlon Finally, we note that any evidence of other crew members also failing to use tie tongs was raised after the Supervisor's investigation of the Claimant's misconduct. In order to conclude that the Carrier acted disparately it must be evident that it was aware of the fact that other employees were similarly situated as the Claimant and that despite that knowledge it treated the Claimant differently. The record does not support such a conclusion and we therefore reject the Organization's argument in this regard. Form 1 Award No. 32486