W.R Wallace (Claimant) has been employed by the Carrier as a Trackman for approximately 31 years and was assigned as such to Gang 4138, under the supervision of Foreman R. Roberts, when this issue arose.
On September 3,1998, Gang 4138 consisted of the Claimant, Foreman Roberts, Welder Helper J. Mouton and Welder Helper J. Noel, who were assigned to install track panels on a bridge on the Glidden Subdivision. Specifically, the Claimant was instructed to "tap" the bars in place beneath the rail. While swinging the maul, the Claimant inadvertently struck Welder Helper Mouton on his left hand which resulted in lacerations on two of his fingers.
As a result of the incident, the Carrier sent the Claimant the following Notice of Investigation:
The Investigation was held as scheduled, and on September 29,1998 the Carrier informed the Claimant that he had been found guilty of violating Rule 70.12. As a result, the Claimant was assessed a Level 2 Discipline.
The Organization protested the discipline, asserting numerous procedural violations. Specifically, the General Chairman maintained that the Carrier had charged the Claimant with violating Rule 70.11, "Safe Working Space" and swinging tools, but had reviewed the Investigation transcript with regard to Rule 70.2 "Drop or Throw Objects." The General Chairman further maintained that because the Charging Officer was not present at the Hearing, the Carrier premised its decision to discipline the Claimant upon "second hand information and hearsay."
With respect to the merits of the issue, the General Chairman notes that the Claimant was working in a confined area, and that Mouton was "an inexperienced man assisting in the performance of this work with little or no training."
Finally, the General Chairman pointed to the Claimant's 31 years of unblemished service, contending that the charges should be dropped and the Claimant should be compensated accordingly.
For its part, the Carrier maintained that the Claimant was afforded a fair and impartial Hearing, and asserted that it had proven, by substantial evidence, that the Claimant was guilty of violating Rule 70.12. Finally, the Carrier pointed to the serious Form 1 Award No. 35982
nature of Mouton's injury, contending that the assessed discipline was commensurate with the violation.
Although the Organization asserts certain procedural "defects," there is no evidence that the Claimant's rights were compromised during the handling of this issue.
Turning to the merits of the dispute, on September 3,1998 as Gang 4138 installed track panels, Manager Track Maintenance J. A. Flores Jr. instructed the Claimant to "knock the bars in" with a 12 pound maul. For the majority of the project, the Claimant "tapped" the bar in with the maul, while Welder Noel inserted the bolts. However, at approximately 5:00 P.M., when Welder Noel went to get a drink of water, Mouton, without being assigned to do so, took Welder Noel's position. Shortly thereafter, the injury now under discussion occurred.
There is no dispute that the unfortunate series of events that took place on September 3, 1998 led to Welder Helper Mouton's injury. However, there is no evidence on this record which supports the Carrier's assertion that the Claimant was responsible for the injury, or that he violated Rule 70.12. In fact, the record evidence demonstrates that the Claimant was keenly "aware of the work and movement of other group members," and did all that he could to avoid/mitigate serious injury.
Specifically, Foreman Roberts, who was directing the project, stated the following:
For his part, and in that connection, Welder Mouton stated that he believed that the Claimant did "everything he could to avoid the accident." Finally, the Claimant, who had been performing the identical task for some 31 years "without incident," maintained that Mouton was merely "inexperienced" and "lost focus" on the task.
In the circumstances, the Carrier was unable to prove that the Claimant was responsible for Mouton's injury, or that he violated the Rule for which he was cited. Therefore, this claim must be sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.