PUBLIC LAW BOARD N0. 3445
PARTIES TO DISPUTE
STATEMENT OF CLAI1
Award Number: 47
 Case Number: - 47

 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

 SOUTHERN RAILWAY COMPANY

 Claimant, R. G.-Marlar, allegedly charged with violation of Carriers Operating Rule GR-3, Rule M and alleged failure,to follow instructions of Supervisor B&B Michael A. Hills. Dismissal of B&B Foreman Ralph G. Marlar was without just and sufficient cause and on the basis of unproven and disproven charges. Claimant should be reinstated with seniority and all other rights unimpaired and shall be compensated for all wage loss suffered and his record cleared of this charge.

 FINDINGS
Claimant entered the Carrier's service on August 2, 1970.

 By letter dated April 30, 1987, Claimant was directed to attend a formal investigation on charges he violated General Rule M, General Regulation GR-3, Southern Railway FALL Protection Procedures and his superior's instructions. The investigation was conducted on May 12, 1987. Claimant was dismissed by letter dated May 18, 1987 based on evidence adduced at the investigation.
The parties met on June 4, 1987 to discuss alternatives to the assessed discipline. On June 29, 1987, the Organization advised the Carrier that Claimant had rejected the offer of reinstatement.
dismissed for just cause under the Agreement; and if not, what should the
 remedy be.

 The Fall Protection Guidelines and the relevant rules and regulations provide as follows:'-

























                                                        t

                                            3yqS-4'1


    Railway use will be thoroughly engineered and tested before such,

    devices become standard B&B equipment.


    The only exceptions to the above instructions are as follows:


        I. Bridge Inspections: Due to the nature and present techniques of this task, use of fall protection equipment is impractical.


        II. Persons standing, walking, or working between the rails or more than 4 feet from edge of a structure will not be required to use fall protection equipment.


        III. Pile driving: Men on top of the bridge performing pile driving are exempt from wearing fall protection equipment.


    Preventing falls requires preplanning, safe work procedure. discussions between workers and supervisors, and close supervision of the emgloyes,


    SAFETY RIJUS


    B. Employes must be conversant with and obey the rules and

    special instructions. If in doubt as to their meaning, employes

    must apply to the proper authority for an explanation.

                                                        ,i


    If bulletin instructions conflict with special instructions, the instructions bearing later date will govern.


    M. Some platforms, bridges and other structures, switch stands

    and tunnels will!,not clear a person on the top or side of a car or

    'engine. Employer must become,~familiar ibith these and other

    places And protect themselves~from injury.


    Employes must not do any work in a manner that will jeopardize their own safety or the safety of others. They must know that appliances, tools, supplies and facilities used in performing their duties are. in proper condition. If not, they must have them put in order before using them. It is the duty of every employe to examine them to determine their condition.


        Employes must expect the movement of trains, engines or cars

    at any time, on,any track, in either direction. ',


    GR-3. All employes must follow instructions from proper authority, and must perform all duties efficiently and safely.


    Between March 2 and April 4, 1987, Claimant was assigned as a Bridges


and Building Foreman supervising a gang repairing a bridge at CNO&TP

                            3


                                                          t

                      _. 1 34 LIS- Lil


milepost 4.6. This' operation consisted of replacing anchors and securing the anchors with reinforcement plates. The bridge under repair was in excess of 20 feet in height.

    The Carrier's crews are required to use fall protection gear when,

working on bridges in excess of 20 feet in height. Further, when conducting
 certain maintenance and repair operations, a foreman must arrange to block
 off the track by use of a Form 23-A filed with the dispatcher for the area
 in question. It is unclear from the record the precise requirements for
 filing of a Form 23-A.

          i


Claimant did not file a Form 23-A to secure flag protection. At various times,-Claimant did not require gang members to wear fall protection gear. Claimant had difficulty in obtaining and filing the Form 23-A for

 this particular repair operation. General B & B Supervisor M. A. Hille
 made various confusing ox' ambiguous statements or instructions to Claimant
 during the course,o~f,the repair,.operation regarding the use"of the Form 23=
 A. `

 The'position of the Organization is that Claimant was dismissed unjustly because Claimant did not feel that a Form 23-A was necessary in this situation. The Organization describes the bridge in detail and contends, in essences, that there Fgs ample space between and around the tracks on the bridge to provide Claimant and the gang protection from oncoming trains and,from falls. No Form 23-A was filed because Claimant "considered himself and his men fully protected." By implication, the

                            4

                      n.

                                    n. .


                                          314 S -q


Organization maintains that the,ample space-also obviated the need for fall -
 protection restraints. The Organization concludes by asserting that the

 Carrier has not met its burden of proof.

 The Carrier contends that Claimant was dismissed for just cause because -

 he placed his gang at risk by violating safety rules'and instructions. The
 Carrier contends that the record clearly proves 'that Claimant admitted he
 did not file a Form 23-A and that fall protection restraints were not used.
 The Carrier maintains that following these essential safety, rules is not-an

 option based on a foreman's discretion, but a requirement of the Carrier's -
 rules that must be followed for the protection of all concerned. Indeed,
 without this protection, the gang is defenseless. The Carrier contends that
 dismissal is warranted because of the serious violation of the safety rules.

 After review of the entire record, the Board finds that the more appropriate disposition is reinstatement with all but six months back pay restored.

    The Carrier has established that fall restraints are required by its


rules in the case of a bridge of the height here in question. It remains -

 unclear when a Form 23-A is required and what safety factors make its filing
 unnecessary.' The evidence indicates that Hille raised the issue and
 insisted on ensuring protection for the B & B gang. Claimant had an
 obligation to protect his gang from onrushing trains and gravity--both very

 powerful forces. (Claimant evaluated the dangers and judged the protection
 adequate. However, Hille's insistence should have, been met with an

                                          3qq5-LI7


overabundance of safety precautions: the filing of a Form 23-A and the use of fall protection restraints.ll'

 The record does, not support the dismissal. Both sides share the fault in this ma tter,lboth initially and following the investigation. Both acted in an unharmonious and thoughtless fashion. The Carrier should have

                      I


reinstated Claimant and allowed him to claim for back pay. Claimant should'

 have returned to work when offered the opportunitylto-.do'so. Therefore,' _ "i~

 reinstatement with all but six months back pay restored is the more
 appropriate disposition.
                                                        I

                                                        1


AWARD
              -


            . 1.


    Claim disposed of per Findings herein.,


                                                    .1


                            Nicholas H. Zumas, N utral Member


                              rrier Member -t


p Orga at ion Member
 Date: ~_i.E 12, ~/~O l

 6