Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35728
Docket No. MW-35043
01-3-98-3-734
The Third Division consisted of the regular members and in addition Referee
Robert L. Douglas when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Grand Trunk Western Railroad, Inc.
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The discipline [suspension from holding a foreman's position for a
period
of
one (1) year] imposed upon Foreman J. Rodriguez for
alleged violation of Rule #3003 in connection with damage to Truck
6022 YB while supervising the operation of and riding in said truck
on September 10, 1997, was arbitrary, capricious, on the basis of
unproven charges and in violation of the Agreement (Carrier's File
8365-1-617).
(2) As a consequence of the violation referred to in Part (1) above, the
Claimant shall be reinstated to the foreman position with seniority
and all other rights unimpaired, his record cleared
of
the charges
leveled against him and he shall be compensated for all 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 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 1 Award No. 35728
Page 2 Docket No. MW-35043
01-3-98-3-734
This Division
of
the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice
of
hearing thereon.
Rule 3003 provides:
"Foreman or other person in charge
of
work shall be responsible for safety
instruction, including reading
of
the Safety Rule
of
the Day, and safe
performance
of
all
of
the men under him."
A careful review
of
the record indicates that the Claimant was riding as a
passenger in a truck that had a hydraulic crane attachment that workers used to handle
rail and other track material. While traveling in the vehicle, the boom hit an overhead
bridge. The collision damaged the boom and the truck.
The record confirms that the Claimant should have known that the driver of the
truck had failed to position the boom in a proper manner. In this regard the position
of
the Claimant as a passenger meant that the improper position of the boom was visible
to the Claimant. As a Foreman, the Claimant therefore had an affirmative obligation
to be aware of the safety implications that existed in the context of traveling in the
vehicle and should have checked to make sure that the boom was in the proper position.
The fact that a collision occurred certainly confirms that the Claimant failed to take
such a reasonable precaution. The Carrier has a legitimate right to expect that a
Foreman, such as the Claimant, would have taken such minimal action to protect the
safety of the Carrier's employees and the public and to safeguard the property of the
Carrier and third parties.
Under these circumstances the Carrier did not act in an arbitrary or capricious
manner by disciplining the Claimant. The Carrier therefore sustained its burden to
prove that a violation of Rule 3003 had occurred. Any other arguments raised by the
parties are not material to a resolution of this dispute.
AWARD
Claim denied.
Form 1 Award No. 35728
Page 3 Docket No. MW-35043
01-3-98-3-734
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 24th day of October, 2001.