Form 1 NATIONAL RAILROAD ADJUSTMIENT BOARD.
The Third Division consisted of the regular members and in addition Referee,
Steven . ieriwhen award was rendered.
(Brotherhood of Maintenance f Way Employes
(The Burlington Northern and Santa Fe Railway Company,
( (former Burlington Northern Railroad Company)
"Claim of the System Committee of the Brotherhood that:
(1) The Level 1 - Formal Reprimand and two (2) year probationary
period for violation of Safety Rule 1.5.2 assessed Track
Inspector . C. Hunter for his alleged failure to properly insect
his work location for any unsafe conditions at Longview,
ashington which resulted
in:
a personal injury on April 27, 2000
was without just and sufficient cause and excessive punishment
[System File S--7 2- /11-00-0420 (MW) ]
() s consequence of the violation referre to in Part (1) above, .
Track Inspector . C. Hunter shall nave his record cleared o
The Third Division
of
te Adjustment. oBoard, upon the whole record the
The carrier or carriers n the employee r employees involve in this is tar
respectively carrier aemployee itin the meaning the ail Labor Act, as
_ ._. .. . a .proved June 21,1934
This Division of the Adjustment oar has jurisdiction over the dite involve
herein.
or 1 Award .37262
Pa a Docket . -37103
0-3-1-3-6 1
Parties
to said dispute were given due notice of hearin thereon.
The Claimant established and holds seniority s a Machine Operator, elder,
and Track Inspector with 4 years of service. The incident occurred on April 27, 2 0,
at
which time' the Claimant was assigned and was working. as a Track Inspector
hdqartered at Longview; Washington.
The Carrier uses an old boxcar as tool storage shed at Longview, Washington.
The
wheels
have been removed from the car and it
sits
slightly raised from the round.
Two ties are placed at the entrance to the car as steps and access is gained by
stepping
off of these
ties
into the car. There
is
steel grate on the bottom of the car
end
no
lighting within. Outside the entrance to the car is a piece of grating that is broken off
and is
missing.
On the day of the incident,
following
a morning job briefing, the Claimant was
preparing for the days' work and determined that a needed switch lubricant. The
lubricant was
stored inside the boxcar. Prior to entering the boxcar to retrieve the
lubricant,
the Claimant asked Track Maintainer P. G: Lee for a flashlight, but none
was available. As the Claimant
attempted
to enter the boxcar, he stepped on the
threshold; caught his foot on the broken grating and tripped. He attempted to gain his
balance with his other foot, but it slipped out from under him and he fell into storage
cabinet, sustaining injury. The Claimant then. immediately reported his inju and
medical attention was provided.
y letter dated a, 000, the Carrier
directed
the Claimant to report ay.
11, 2000, ". . . for the purpose of ascertaining the facts and determinin
responsibility,
if
any,
in connection with your alleged failure to properly inspect your work loction
for any unsafe conditions resulting
in
your allege personal injury, at Longview,
Washington, t approximately 715 hours, April 7, 2000." The Investigation
as
postponed but was ultimately held
May
1 , 2000.
n letter dated June , 000, Assistant Division Engineer . . tilled
the Claimant as follows:
"This letter ill conr that s a result of investigation ,
0 , coeer~ih your
failure
to properly inspect your work location
for
any
safe conditions retin in y allege rsnal injury, t
Longview, Washington, t proximately 071 hours, , April 27, 20009
you are issued a Level 1 - Formal Reprimand,
for
violation f
. Forts
I Award No. 37262
.. Page Docket o. -37103
-3®1-3
Safety Rule 1.5.2. ,Additionally, you have been assigned a probation
period of two years."
The Organization. claims that the discipline imposed upon the Claimant as
unwarranted, harsh, and excessive. The Organization contends that the burden f
roof in a discipline matter such as this is on the Carrier; that burden of proof has not
been met. While the Organization concedes that the Claimant was involved
in
said
accident' it is the Organization's position that the accident was not caused due
to the
Claimants negligence. It claims that the Claimant was disciplined solely for being
involved in an accident and suffering injury. This is not .a basis for discipline: The
0r anization asserts that numerous employees had been
in
and out of the boxcar
o 'o
without reporting the missing grating as a condition that could potentially cause injury.
Thus it is clear that the broken grating vas not perceived as safe hazard.
:According
to the Organization,
the
Carrier should stow be required to clear the
Claimant's record of any mention f the
incident.
ConversedY, the Carrier takes the position that it met its lurden of proof.
According to the Carrier, it is clear that the floor s hazardous and require that
any
individual watch their step, which the Claimant clearly did not. The Carrier did not
reprimand the Claimant for injuring himself. Rather, the Claimant
was
reprimanded
because he did not properly inpect the floor and report the obvious unsafe condition.
The Carrier considers the Claimant guilty as charged. According tie Carrier, a
review of the transcript developed during the Investigation leaves do doubt that the
Claimant violated the relevant ules.
In discipline cases, the Board sits as
an
appellate forum. o not weigh the
evidence a novo. As such, our function is not to substitute our judgment for the
Carrier's, nor to decide the matter in accord with what a might r might not have
done had it been ors to determine, but to rule upon the question
whether
there is
substantial evidence to sustain finding of guilty. If the question is decided in the
affirmative, a are not warranted in disturbing the penalty unless a can say it appears
fro the record that the Carrier's actions were unjust, unreasonable r arbitrary, s
Jo
constitute an abuse .of the Carrier's discretion. (S.ee
Second
ivisi7 ,
Third Division. Award 11 6.)
n t instant case the Claimant is caith violation ule . . that
requires n employee insect the work loctin for any condition that might cause
injury. ecitically, the Rule provides:
For 1
I
Award
o.7
Page 4 Docket o. -37103
®-01-3-6 1
"Inspect your work locations and vehicles
for any
conditions that might
cause injury, property damage, or interference with service. If you
find such a condition, take necessary action to protect against
the
hazard,
or
discontinue activities in the area or with the vehicle®
Promptly . . . report any defect or hazard
to
your
supervisor
or person
in charge."
fter a review of the
evidence,
the Board cannot find that there
was
substantial
evidence in the record to sustain
the
Carrier's position that the Claimant did not follow
Rule 1.5.2. The Organization was able to present sufficient
evidence to
show,
that
the
allegedly hazardous condition existed for a substantial period of
time without
submission of a report.
Further,
the Or ganization
successfully
argued
that the
Carrier's Slip Trip
and
Fall
Team
had
previously
inspected the structure
and
noted no
exceptions or
hazards
in connection with the grating.
Based on this determination, the Board
overturns
the
discipline
imposed
in this
matter. The Claimant's record shall be expunged of the discipline.
AWARD
Claim sustained.
ORDER
-
This oar, after
consideration
of the dispute identified above, hereby orders that
n award favorable to the Claimants) a e.
The
Carrier is ordered make the
and effective on
or
before 39 days following the postmark date the
and
is
transmitted
to
the parties.
NATIONAL T T BOARD
y Order of Third Division
ated
ica
o, Illinois., this ay of ve e.