At the time of his discipline, the Claimant was assigned as a Trackman to work with and assist Track Inspector L. De Leon with track inspection duties. He held more than nine years' seniority in the Track Sub-Department of the Maintenance of Way and Structures Department. On January 27, 2005, at some time after the lunch break, the Claimant stepped down from the truck in which he was riding, slipped, and injured his elbow in the fall. The Claimant reported the incident to his supervisor and filled out the proper forms the following day.
An Investigation was held on June 1, 2005. By letter of June 6, 2005, the Claimant was notified that he was assessed a five working day suspension and one calendar year probation.
The discipline was appealed on June 15, 2005. The Organization noted that the Claimant had a nine-year unblemished record with the Carrier and that he had worked up to the time of the accident in inclement weather (moderate snowfall) without incident. Thus, the Organization argued, there was no basis to determine that the Claimant was in any way negligent in his conduct leading up to the injury at issue. The Organization also pointed out that there are some inherent problems with wearing "ice creepers," and that the Claimant testified he had seen no other employees wearing them on the day of the incident.
The Carrier denied the claim by letter of June 28, 2005. It pointed out that the Claimant admitted he knew the conditions in which he was working that day were slippery. It also noted that the Claimant's testimony at the Hearing confirmed that he had at best a "two point" rather than the required "three point" contact when he descended from the passenger side of the truck. The Carrier's denial was appealed on June 30, 2005 and the matter was progressed up to and including conference on the property. In a letter to the Organization, following conference on the property, the Carrier offered, "as resolution to this matter," to reduce the penalty to three days. The Form 1 Award No. 38207
Organization rejected the Carriers offer and the matter is now properly presented for resolution by the Board.
The Board reviewed the transcript carefully. Testimony on the record establishes that conditions of the ground and track areas on the day of the incident in question were less than ideal. By the Claimant's own admission, he was aware that the ground might well be slippery, but elected not to wear the "ice creepers" available to him. Furthermore, it appears from the record that he did not have the recommended "three point" grasp on the vehicle (two hands and one foot) before stepping down onto the slippery ground. Thus we find that he was not without responsibility in his resulting injury.
However, evidence in the record indicates that the usual discipline for such a minor infraction is normally three days' suspension - the amount offered by the Carrier following conference on the property. Accordingly the Board finds that the Claimant's discipline shall be reduced to three days' suspension and he shall be reimbursed for the remaining two days of his suspension if served.
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.