This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
As of June 26, 1996, the date of Claimant's discipline, the Carrier had employed Claimant since February 21, 1974, a period of over 22 years. Prior to the discipline imposed in this case, Claimant had not received any previous discipline. The incident in question occurred on June 5, 1996. At that time, Claimant had established seniority as a Trackman.
On June 5, Claimant was assigned to work on Gang 4124 in a gang of three including Foreman F. Conrad and Truck Operator T.G. Peters. Gang 4124 was assigned to install trackties at Milepost 627 at Ransom, Kansas. The-three men were replacing switchties with trackties. After a job briefing, they began in the morning and performed their duties without incident. At approximately 1:15 P.M., Foreman Conrad had completed cleaning ballast out of a hole to install another tie. He instructed the Claimant to pull a tracktie into the hole under the rail. The Claimant's first attempt to insert the tie was unsuccessful. Pursuant to instructions, Claimant then removed the tie and Foreman Conrad again attempted to clean out the ballast. Foreman Conrad then asked Claimant to pull the tracktie into the hole under the rail. The Claimant, who had his back to Foreman Conrad, completed these instructions. However, for some reason, Foreman Conrad's foot was in the hole and when Claimant placed the tie back in the hole, the Foreman's foot became pinned between the tracktie and the rail which caused a compound fracture to his ankle. The Claimant then transported Foreman Conrad in Claimant's vehicle to the hospital in Ransom, Kansas, for medical treatment. Claimant then reported the incident to Track Inspector B. Herrman (Claimant's Brother) who in turn reported the incident to Roadmaster C.J. Vallejo. Roadmaster Vallejo conducted a preliminary investigation of the incident. At the conclusion of the preliminary investigation, he removed Claimant from service pending formal Investigation.
By letter dated June 6, 1996, Claimant was instructed to attend an Investigation on June 11, 1996 in Scott City, Kansas, in connection with the accident suffered by Foreman Conrad on June 5, 1996. Specifically, Claimant was charged with violations of Rules 1.1, Safety Rule 1.1.1, Maintaining a Safe
Course, Rule 1.12, Alert and Attentive, and Rule 1.6, Conduct from the Safety Rules and Rules of Instructions. On June 10, the General Chairman requested a postponement of the Investigation until June 18, 1996, which was granted. The Investigation took place on June 18, 1996 and on June 26, 1996, Claimant was found guilty of violating the above-mentioned Rules on June 5, 1996 and that Claimant's actions contributed to the personal injury sustained by Foreman Conrad. As a disciplinary action, Claimant was suspended for 15 days, to be served from June 6 through June 20. He was returned to work effective June 24, 1996 and he was to be paid for June 21, 1996.
The Organization contends that the Carrier violated the Agreement because it failed to prove that the Claimant had violated the relevant Safety Rules. Claimant had his back to Conrad when he pulled the tie in and could not possibly see that Foreman Conrad's foot was in the hole when Claimant was inserting the tracktie. Claimant was following Foreman Conrad's oral instructions. The Organization contends that the burden of proof is on the Carrier and in this case, the Carrier has not met that burden. Additionally, the Organization contends that even if the Claimant was somehow at fault, his penalty should be commensurate with Foreman Conrad's, who was also at fault. Because Conrad received no penalty, Claimant's 15-day suspension constitutes disparate treatment and must be rejected.
The Carrier alleges that there was substantial evidence at the Investigation to prove that Claimant violated the Safety Rules identified. Further, the Carrier claims that the amount of discipline imposed, a 15-day suspension, was commensurate with the nature of the Rules infractions. The Organization requested interest at the rate of 18% if the claim is sustained. The Carrier responds that interest is not provided for either by contract language, or by past practice, citing Public Law Board No. 4769, Award 49, Third Division Award 24614, 23918 and other Awards.
The Board sits as an appellate forum. We do not weigh the evidence de novo. As such, our function is not to substitute our judgment for the Carrier's, nor to decide the matter in accord to what we might or might not have done had it been ours to determine, but to pass upon the question whether there is substantial evidence to sustain a finding of guilty. If the question is decided in the affirmative, we are not warranted in disturbing the penalty unless we can say it Form 1 Award No. 33566 r,
appears from the record that the Carrier's actions were unjust, unreasonable or arbitrary, so as to constitute an abuse of the Carrier's discretion. (See Second Division Award 7325; Third Division Award 16166).
The Board reviewed the transcript and the positions of both parties. We cannot find that there is substantial evidence that Claimant was guilty of violating the Safety Rules on June 5,1996 when Foreman Conrad was injured. At the time of the incident, Foreman Conrad was instructing Claimant .n when to place the tracktie. As was the practice, Claimant was facing away from Foreman Conrad and was following his instructions when he pulled the tracktie in place injuring Conrad. It would not have been possible for him to see that Foreman Conrad's foot was in the hole as he was facing the other way. Claimant attempted to place the tracktie once, but without success. He tried again, placing the tracktie only when specifically instructed by Foreman Conrad. When Foreman Conrad told Claimant to place the tracktie, he did as instructed. This is consistent with Foreman Conrad's testimony:
Thus, it is apparent that Claimant was working within his instructions and did not violate any Safety Rules. This is how the Gang had operated at all times up to the accident. As Foreman Conrad testified, he did not know how his leg got into the hole when Claimant placed the tracktie and Claimant could not have seen it. Thus, this was one of those unfortunate "accidents" which occur through no one's fault. Thus, after a review of the entire record, we cannot find substantial evidence to uphold the Carrier's conclusion that Claimant violated the Carrier's Rules.
As we have now reached a decision in favor of the Claimant on the issue of the Rule violations, we turn to the claim by the Organization that Claimant is entitled to interest at the rate of 18% on the 15 days of backpay to which he is entitled. On this issue, we rule in favor of the Carrier. There is no authority either in the Agreement or past practice which allows for such interest payments. See Public Law Board No. 4769, Award 49, Third Division Award 28178, 24710, 24614, 23918, and Second Division Award 12385.
Because the Carrier failed to meet its burden of proof that a violation of the Rules occurred, this claim must be sustained in accordance with the findings. Form 1 Page 6