PUBLIC LAW BOARD N0. 2960
AWARD N0. 102
CASE N0. 137
PARTIES TO DISPUTE:
Brotherhood of Maintenance of Way Employes
and
Chicago & North Western Transportation Company
STATEMENT OF CLAIM:
Claim
of
the System Committee of the Brotherhood that:
(1) The thirty (30) day suspension assessed Machine
Operator R. R. Scarberry for alleged responsibility
in connection with damage to Burro Crane No. 173301 was without just and sufficient cause and on
the basis of an unproven charge. (Organization File
2D-4484; Carrier File 81-84-171-D).
(2) Machine Operator R. R. Scarberry shall be allowed the
remedy prescribed in Rule 19(d).
OPINION OF THE BOARD
This Board, upon the whole record and ail of the evidence,
finds and holds~that the Employe and Carrier involved in this
dispute are respectively Employe and Carrier within the meaning
of the Railway Labor Act, as amended, and that the Board has
jurisdiction over the dispute involved herein.
On February 28, 1984, the Carrier directed the Claimant to
attend an investigation on the following charge:
"Your responsibility in connection with damage to Burro
Crane #17-3301, which occurred on February 24, 1984 at
approximately Mile Post 27.0 on the Trenton Sub-Division."
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The investigation was postponed once. Subsequent to the investigation, the Carrier assessed the discipline on appeal before the
Board.
The basic facts are not in dispute. On February 23, 1984,
while the Claimant was operating a Burro Crane from Williamson to
Clariton, Iowa, the magnet -- hooked to the boom of the crane -fell between the rail. As the Claimant's machine moved over the
magnet, the transmission case and brake rigging suffered exten-
sive damage. -
The work rule which applies to this case is Rule 1011, which
reads:
"Employee in charge of work equipment will be personally
responsible for the safe operation of the equipment."
The Carrier argues that based on the rule, there is substantial
evidence of the Claimant's guilt. They contend that it is irrelevant that the hook, which held the magnet, did not have a
safety latch. They note that the Claimant testified that although he was aware that there was no safety latch on the hook,
he had not reported this fact to anyone, nor had he taken any
measures to secure the hook.
The Organization makes two arguments. First, they contend
that the manner in which the Claimant operated the Burro Crane on
February 24, 1984, was acquiesced in by the Roadmaster. Second,
they assert that since the Roadmaster was well aware of the type
of hook being used, and allowed the crane to be so operated, the
Carrier's decision to discipline the Claimant for alleged damage
to ~a machine represents an abuse of discretion.
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PLB N0. 2960
AWARD N0. 102 -
CASE N0. 137
Based on the evidence contained in the transcript, the Board
cannot hold the Claimant responsible for the accident.
At the base of this finding, is the fact that there is
general agreement in the record that had the crane been equipped
with the type of hook that had a safety latch, the accident would
not have occurred. The Carrier believes this is not material
since the Claimant had not taken measures to secure the hook, or
bring the matter to,anyone's attention.
However, in the context of this record, these arguments are
not cogent. First, the Board is satisfied that the Carrier was
fully aware that the crane was being operated without .a safetylatch hook and failed to take exception to its operation in this
mode.
Thit fact is established by the sheer length of time that
the crane was operated without a safety-latch hook. It is also
established by the fact that two months prior to the incident,
the Claimant was instructed to give a smaller and better hook,
which was on his machine, to another crane operator. It is also
relevant that at this time, the other crane operator asked the
Carrier to purchase a new hook, and the request was denied. It is
also important, to note, that although the Carrier was aware that
unsecured hooks were in operation, they issued no specific instruction that operators should take certain precautions. The
Carrier did argue that he should have known to wrap wire around
the hook. However, there is no basis in the record to show that
this would have prevented the accident, or even that he should
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have known to do this. The investigation is void of any evidence
on "wrapping wire" around the hook. Thus, this is complete
speculation on the Carrier's part.
Accordingly, it is apparent that the Claimant, insofar as
the hook goes, was operating the crane in a manner consistent
with that which the Carrier had accepted as customary and usual..
Thus, it is unreasonable to expect the Claimant to have brought
the matter to anyone's attention, or to have taken other precau
tions such as wiring the hook. Therefore, no responsibility,
direct or indirect, can accrue to the Claimant in connection with
the hook. .
The only possible responsibility which might accrue to
the Claimant, under the relevant rule and these circumstances, is
if he was operating the crane at an unreasonably high speed as to
cause bouncing of the magnet. However, there is no evidence to
rebut the Claimant's contention that he was consciously watching
his speed so as to prevent that.
In summary, the Carrier has not shown that the Claimant was
acting unreasonably., wrecklessly, or in a manner which contributed to, or caused, the accident.
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PLB N0. 2960
AWARD N0. 102
CASE N0. 137
AWARD:
The Carrier is ordered to compensate the Claimant for all time lost.
~'~1 Vernon, unairman
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Dated:
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