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PUBLIC LAW BOARD N0. 1760
Award No. 126
Case No. 126
Docket No. MW-DECR-89-50
Parties Brotherhood of Maintenance of Way Employes
to and
Dispute Norfolk and Western Railway Company
(Former Wabash)
Statement
of Claim: Claim on Trackman J. E. Beck, Jr., for pay for all time
lost while suspended 15 days for failure to properly perform
his duties in a safe manner August 23, 1989, resulting in
personal injury.
Findings: The Board has jurisdiction of the of this case by reason of
the parties Agreement establishing this Board therefor.
The Claimant Laborer, J. E. Beck, Jr., on August 23,
1989 was assigned to and working in extra gang 103. He was
changing ties at the north end of the roundhouse building
when injured. The Claimant held a spike lifter that was hit
by a spike maul held by Trackman A. B. Wessel which as a
result thereof caused a piece of metal to break off the
spike maul and strike the Claimant in the left leg. Beck
lost 25 days from work as a result of that injury.
Both the Claimant and Mr. Wessel promptly reported the
incident. Track Supervisor Jackson met both at the accident
site. According to Jackson both men admitted that they
should have used a sledge hammer, which was available and
within walking distance, instead of the spike maul to strike
the spike lifter.
The Claimant was cited to an investigation for
violation of Safety Rule 1204 which, in essence, prohibits
use of spiking mauls to strike specific classifications of
hardened tools. As a result thereof, Carrier found him
culpable as charged. He was suspended from service for a
period of 15 calendar days as discipline therefor.
Mr. Wessel, incidentally, also received the same
disciplinary suspension which is appealed to this Board in
Case 130.
"Spike mauls must not be used to strike chisels, rock
drills, punches, lining pins, or other spike mauls."
The Board finds that Claimant was accorded the due
process to which entitled. The notice of investigation was
so precise as to have well put him on notice as what to
prepare a defense on or against. The Claimant was well
represented. He had the right of confrontation and
examination. The Claimant faced his accusers. He exercised
his right of appeal.
The question of appearing as witness at Trackman
Wessel's investigation was not timely raised and it will not
be reviewed.
There was sufficient evidence adduced to support
Carrier's conclusion as to the Claimant's culpability. The
Claimant admitted culpability at the scene of the incident.
The admission was that they were aware that they should not
have used the spike maul to strike the spike lifter. The
defense raised at the investigation was contrary to
the statements given at the time of the incident. Carrier
chose to believe its witnesses. Such assertions were more
self serving than a valid defense. The fact that the term
"spike lifter" does not appear in 1204 is not a valid reason
to conclude that the rule did not apply. The tools cited in
the rule are categories of hardened tools. The spike lifter
which is shaped similar to a B&0 punch, is used as a wedge,
similar to a track chisel, in order for it to drive between
the spike head and tie plate.
The record also indicates that the Claimant admitted
that they normally use a sledge hammer to strike a spike
lifter. For the Employees to further argue that the
Claimant, who was working with Mr. Wessel, should not be
held accountable because of that fact simply creates
credulity. Both admitted their guilt. To then deny guilt
solely on the grounds of "association by work" is stretching
logic thinly. The Claimant had culpability. The Claimant
had an affirmative duty and a responsibility to at least
have stated that a sledge hammer should be used to strike
the spike lifter. Mr. Beck knew what tool was to be used.
He was as much in violation as was Wessel in violating Rule
1202. In the particular circumstances, this claim will be
denied.
Award: Claim denied.
ck,~
.
S. Hammons, Jr. Employee mber L.° F. MiT'Ter; 5iK~'arrier Member
Arthur 1. Van Wart,'Chairman
and Neutral Member
Issued December 31, 1991.