For 1 ward o.763

Page 2 Docket o. -37376

0-3-0-3-412

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and eployee within the meninf the Railway Labor Act,

.

as, approved June 21,1934.

This Division of the Adjustment Board hajurisdictin over the dispute involved herein.

Parties to said dispute were given due notice of hearin thereon.

Claimant . D. Vile established and holds seniority as elder, with seven

years of service. Claimant C. . Pashek established and holds seniority as a

Grinder, with years of service. August 23,1999, they had track authority and

ere working on .Main 1 at Milepost 468.1.

. Upon completion of their work, the Claimants "set-ofl~' or cleared Main 1 by

removing the y-rail truck from the track, and made preparations to return to the

properly fastened, and removin personal protective equipment, such as hardhats.

It was during this time that Claimant °le observed a plug rail in Main Track No.

("Main ") that needed to a replaced. However, before that rail could a replaced,

measurement was required in order to determine the proper length of the

replacement rail.

The Claimants decided t® measure the plug rail before returning to the depot, and to do so, proceede to foul Main t Milepost 4 .1 without obtainin trac and tie, and without wearing their hardhats. The Claimants admitted to said violations t the Investigation.

y letters ate August ,1999, the Claimants ere directe to "Arrange to

ttend investigation i the Burlington Northern Santa Railroad Section ous,

k, la, at l hours- Friday, September , 1 9, for the purpose of

scertaining the facts and determining ur rs osi iii , if , in connection it

your alleged filure tear roper PPE safe equipment and your failure to

provide proper protection while foulin t mainline on August ,1 , at near

P 46 .1 t approximately 1220 hours." The Investigation held on September

1

3

"This letter will confirm that as a result of our formal investigation -

.on.. 3,1999, concerning your failure to wear proper PPE

safety equipment and your failure to provide proper protection while fouling the main line ouust 23,1999, at or near 468.1 at approximately 1220 hours, you are issued a Level S suspension of 20 days for violation of Rules -1.3.1, -21.1; 6.3.1, 6.3.3 aid 6:3.4. Additionally, you have been assigned a probation period of one year. If you commit another serious', rule violation during the tenure of this probation period, you will a subject to dismissal."

The Organization claims that the discipline imposed upon the Claimant s unwarranted, harsh, and excessive. The Organization contends that the burden of proof in 'a discipline matter such as this is on the Carrier; that burden of proof has not been et: While the Organization concedes that the Claimants did engage in the alleged violations, it claims that the punishment instituted was overly harsh. According to the Organization, the Carrier should now be required to clar the Claimants' records of any mention f the incident, to compensate the ` for all lost wages, including lost overtime and take them hole for vacation,, holidays, and seniority,

Conversely, the Carrier takes the position that it met its burdeprooL,

n According o the Carrier, it is clear that the Claimants clearly violate numerous

ides when they did not request track protection and when they did not wear their, hardhats. The Carrier considers the Claimants guilty as charged. According t

F0rIn 1 Award : 37263

Page Docket No. -37376

0-3-02-3-41

appears from the record that the Carrier's actions were unjust, unreasonable or arbitrary, so as to constitute abuse of the Carrier's discretion. (See Second

ivision Award 7325; Third Division Award 16166.)

In the instant case, the Claimants are charged with violations of ides -1. .1,

-21.1, 6.3.1, 6:3.3 and 6.3.4 when they did not obtain track protection and did not wear their hardhats. The Rules provide follows:

-1.3.1 Requirements

a familiar with and wear personal protective equipment and

recommended use or design of personal protective equipment or

clothing must be approved by the manufacturer.

S-21.1 Personal Protective Equipment Requirements

All NSF employees, contractors, and their agents, visitors and vendors must wear the following equipment while on NF proper

* Hard hats with mini a six-point suspension.

. .1 Track Occupancy

Except as provided for below in Minor Work and Routine Inspection or in Rule 6.1 .7 . . . employees must apply one o the following types of utority or protection hen -track oftrack equipment is use on or foul of the to hen work is performed ®o I of the track.

. .isul etecion Trains.

Employees ssi nd to r a lookout, and lone workers sn

iividul train detection, must complete forentitled, 'Statement

n-Track Safety' rior to foulin track. The comp. ltd for

st be in the employee's possession while the work is being performed.

6.3.4 Lookouts

Lookouts must adhere to the following:

* Be trained and rules qualified.

* Identify a place of safety where they and employees they are protecting can go when a train approaches.

* Communicate the place of safety to the other' a ployees prior to the track being fouled.

* Devote their full attention to detecting the approach of trains and warning employees."

After revie of the evidence, the Board finds that there s substantial evidence in the record to sustain the Carrier's positio that the Claimants did not act appropriately when they did not obtain protection and when they did not ear their hardhats, a's the Claimants so admitted durin the Investigation. The Organization wanale to rebut this evidence. a note that the Organization contends that the Claimants' work falls within the " inr Work" exception in Rule. 6.3.1. However, the -Organization as unable to substantiate such claim'.

AWARD