Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36032
Docket No. MW-35781
02-3-99-3-763
The Third Division consisted of the regular members and in addition Referee
Nancy F. Eischen when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Missouri
( Pacific Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline (Level 2 requiring one (1) day alternate assignment
to develop a corrective action plan] imposed under date of July 20,
1998 upon Mr. R. E. Duke for allegedly violating Union Pacific Rule
122.3.1, effective April 10, 1994, in connection with a personal
injury while working as a bridge carpenter on April 22, 1998 was
arbitrary, capricious, on the basis of unproven charges and in
violation of the Agreement (System File MW-98-185/1154841
MPR).
(2) As a consequence of the violation referred to in Part (1) above, the
Carrier shall remove all references of this discipline from Mr. R E.
Duke's personal record and in connection therewith he shall now be
compensated at his respective rate of pay for any and all time he
may have lost and for any incurred expenses."
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.
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This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
The Claimant commenced his employment on February 16, 1982 and holds
seniority as a Carpenter in the Bridge & Building Subdepartment. The Claimant was
working under the supervision of Manager Bridge Maintenance W. Meaux and B&B
Foreman Rodriguez when this dispute arose.
On April 22, 1998, the Claimant was assigned to B&B Gang No. 9356 assisting
in repairing a bridge located at Crosby, Texas, when he fell 12 feet. As a result, the
Carrier notified the Claimant of the following:
"Please report to the Union Pacific Railroad Company on Wednesday June
3, 1998 for investigation and hearing on charges to develop the facts and
place responsibility, if any, that while working as Bridge Carpenter on
April 22, 1998, you allegedly failed to wear the proper safety equipment
while on a scaffold over 12 foot high resulting in a personal injury to
yourself, this is in possible violation of Union Pacific Rule 122.3.1 effective
April 10, 1994."
After two postponements the Investigation was held on June 23, 1998, following
which the Claimant was informed that he had been found guilty of the charges. As a
result, the Claimant was assessed with a Level 2 Discipline and required to attend a one
day alternate assignment, with pay, to develop a Corrective Action Plan.
The Organization protested the discipline asserting at the outset that the
Investigation was "not held as a fact finding vehicle, but solely for placing guilt on the
Claimant." Specifically, the General Chairman contended that the Carrier denied the
Claimant his right to present certain Hearing witnesses.
With respect to the merits of the issue, the General Chairman emphatically denied
that the Claimant had violated Rule 122.3.1, noting that the Claimant was wearing the
requisite equipment, but may not have had it "hooked up" properly. Finally, the
General Chairman asserted that:
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02-3-99-3-763
"It is further our position that it is the Carrier's responsibility to provide
each and every employee with a safe place to work and the Carrier did fail
to do this by the distribution of faulty and unsafe material, and this is
responsible for the board breaking and the Claimant sustaining injuries."
In its denial the Carrier noted that the Claimant was responsible for providing
and paying his own witnesses, and further noted that although the Claimant was
afforded the right to postpone the Hearing, he did not choose to do so.
Regarding the merits of the dispute, the Carrier stated that:
"Mr. Duke was assessed a Level 2 for not complying with Federal Railroad
Administration laws and Union Pacific Rules. He was not hooked up when
he was over twelve foot and was afforded all the tools to comply with the
rules. All employees are responsible for their own safety and scaffold
boards are to be inspected and tested before use. Any scaffold board could
have been and should have been cut up and taken out of service by any
employee, including Mr. Duke."
Rule 122.2.1 states:
"Fall Protection is Required:
A form of fall protection is required when personnel are working 12 feet
or more above the ground or water and the work is not between rails. Fall
protection includes:
*Safety Harness
*Framed scaffolding or staging *Handrails
*Safety nets (installed and maintained by a certified safety net
contractor)
NOTE: If work is extensive and more than 25 feet off the ground,
consider using safety nets for long-term projects, with approval of
Chief Engineer."
A review of the record reveals that on April 22,1998, Gang 9356 was assigned to
install chord bolts for new stringers on Bridge 342.44 on the Lafayette Subdivision. The
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Claimant, who was wearing the requisite body harness (horizontal life line) completed
drilling chord bolts on one side of the cap. However, as the Claimant prepared to go to
the other end of the cap, he unhooked his lanyard from the cable and did not reattach
it prior to stepping on the scaffolding which subsequently broke.
The Organization asserts that the scaffolding was not "properly" inspected.
However, the record does not support that assertion. According to the Carrier's
undisputed testimony, the scaffolding was approved by both the FRA and OSHA, and
all required inspections had been properly performed. In that connection, at the June
23 Investigation, the Claimant reported the following:
"Q. You mentioned a board breaking in your scaffolding. Was this
board inspected prior to its use?
A. We inspect the boards when we got on them, to see if they're
cracked or broke, before we use them.
Q. Did you personally inspect this particular board?
A. Yes, sir. And we looked at all of them."
With respect to the Carrier's assertion that the Claimant violated Rule 122.1.3,
Manager Bridge Maintenance Meaux stated the following regarding the Claimant's
injury:
"Q. Was Mr. Duke wearing the proper safety equipment to prevent him
from falling, per the Chief Engineers instructions?
A. He was wearing, but he wasn't hooked up.
Q. Was Mr. Duke properly tied oft at the lifeline?
A. No.
Q. Did he give you a reason for him not being properly tied off!
A. Yes, sir. He stated he was going around the end of the cap to make
a move to start drilling again.
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Q. And this would cause him not to be tied off properly?
A. No, sir. The horizontal lifeline runs horizontal on top of the caps.
You can slide the lanyard across the cap itself and work your way
around the cap."
Finally, the Claimant admitted the following:
"Q. Were you wearing all the proper safety equipment, per Chief
Engineers instructions?
A. Yes, sir.
Q. At the time of the incident, were you properly tied off!
A. No. As I have mentioned earlier, the reason I wasn't tied off cause
I had to go around the cap to rehook. What caused the accident is
when the board broke. If the board hadn't broke, it wouldn't have
happened."
Clearly, the Claimant did not adhere to the parameters set forth in Rule 122.3.1
thereby injuring himself in the process of performing his assigned duties. Premised upon
the record evidence, including the Claimant's own forthcoming testimony, this claim is
denied.
AWARD
Claim denied.
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 21st day of May, 2002.