This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimant G. Jacobs established seniority as a Boutet Welder, and was assigned to a welding gang headquartered in Batavia, New York, under the supervision of Track Engineer J. Thoman, Track Supervisor P. Tresco and Welder Foreman F. Joya when this dispute arose.
On December 1, 1997, while removing a track grinder mounted on a wheel barrow frame from Welding Truck J3081 the Claimant sustained a personal injury to his back. The Claimant, who was unable to "pinpoint any movement which may have caused the injury," reported same to Foreman Joya. Because the Claimant felt that he could "work the pain out" he continued to perform his assigned duties, but was unable to "work the soreness out of his back." Prior to receiving medical attention, the Claimant completed the requisite statement of his morning activities, and submitted same to Track Engineer Thoman.
As a result, on December 11, 1997, the Claimant was instructed to appear for a Hearing in connection with the charges noted supra. The Hearing was postponed and subsequently held on April 8, 1997, after which the Claimant was notified that he had been found guilty as charged, and was assessed a 30-day actual suspension.
On May 5, 1997, the Organization presented a claim maintaining that the Claimant was not guilty of violating any of the Rules for which he was cited, and that the Carrier failed to prove that he did not properly inspect the equipment, or that the hook on the hoisting crane was an unapproved hook.
The Carrier denied the claim maintaining that the testimony elicited at the Hearing proved the Claimant violated Safety Rules 65.3 and 66.3 when he "failed to plan his work to avoid injury, failed to look for hazards, and failed to follow proper procedures when lifting a grinder weighing over 200 Ibs. thereby causing lumbar strain and a reported injury." Although the Manager exonerated the Claimant regarding Charge No. 3, she asserted that the Claimant's proven guilt on the first two charges warranted the discipline issued. Form 1 Award No. 35919
With respect to Rule 65.3, the Carrier maintains that the Claimant did not properly inspect the hoisting apparatus and was unable to produce a Crane Inspection Report for the date at issue. For its part, the Organization asserts that the Claimant could not be expected to perform written inspections in accordance with MW 252 because he possessed no knowledge regarding same. However, according to Track Supervisor Tresco's undisputed testimony, the driver of the truck is responsible for inspecting the hoisting equipment and properly reporting same. In that connection, the Claimant stated the following:
The Claimant's testimony in this regard clearly demonstrates that he did not possess a crane inspection form for the incident date and essentially constitutes an admission that he did not inspect the crane while assigned to operate the hoisting equipment on the date of the incident. The assertion that the Claimant did not have the "proper form" is irrelevant. By his own admission, the approved hook could not be opened, and it was the Claimant's responsibility to either obtain a proper replacement or get the swivel hook repaired.
With respect to Charge No. 2, the record evidence demonstrates that the Claimant improperly attempted to move the wheelbarrow over rough terrain and up a slight incline in violation of Safety Rule 66.3, part 3, thereby contributing to his injury. If the Claimant had tested the load as required by the Rule, he would have realized he needed help because of the weight of the grinder and the condition of the terrain and slope over which he was trying to push the grinder. In that connection, the Claimant admitted that: Form 1 Award No. 35919
Clearly, the Carrier has proven that the Claimant did not comply with Safety Rule 66.3, part 3, and that his failure to do so resulted in the personal injury sustained on December 1, 1997.
Regarding the discipline assessed, the Organization maintains that when the Carrier opted to delete Charge 3, the 30-day actual suspension should have been reduced. However, premised upon the record evidence, including the Claimant's own admissions regarding the incident, we do not concur. The Claimant failed to look for hazards and failed to follow proper procedures when lifting a grinder weighing over 200 pounds, thereby causing a lumbar strain and a reported injury.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.