Claimant, at the time of his dismissal, was employed by Carrier as a Section Laborer at Princeton, West Virginia.
By letter dated March 20, 1984, Claimant was notified to attend an investigation concerning changes that his work habits were unsafe. An investigation was held on April 5, 1984. By letter dated April 24, 1984, Carrier informed Claimant of his dismissal.
The issue to be decided in this dispute is whether Claimant was dismissed by Carrier for just cause under the Agreement.
The Organization's position is that Carrier failed to establish any safety violations on the part of Claimant, and that his dismissal was therefore improper.
The Organization first contends that Claimant did not violate any safety rule when he was injured on February 28, 1984, the injury precipitating Carrier's actions. The organization alleges that the! Charging Officer, Roadmaster Bailey, was not present at the time of the accident and therefore unqualified to ju go Claimant's negligence. The Organization further alleges that none of Carrier's witnesses had firsthand knowledge with regard to the February 28 injury.
The Organization further contends that Carrier failed to show that Claimant was an unsafe employee generally. The Organization contends that altuough Roadmaster Bailey testified that the other accidents cited could have been avoided, he qualified such testimony by stating, "Let me emphasize I'm not charging [Claimant] with violation of these [safety] rules." The Organization further contends that with regard to five of the six other injuries, Claimant was never charged by Carrier with Safety violations. Th: Organization contends that the mere fact that Claimant sustained seven injuries during five
The organization cites awards holding that injuries do not p= 91 establish safety rule violations.
The Carrier's position is that it established through substantial evidence that Claimant was guilty of violating safety rules and acting in a generally unsafe manner while under Carrier's employ. Carrier therefore maintains that the discipline imposed was reasonable under the circumstances.
Carrier first contends that Claimant's injury record of seven injuries in 21 months indicates the level of Claimant's lack of adherence to safe procedure. Carrier additionally cites the fact that on two previous occasions Claimant had been counselled concerning his unsafe work habits, and that on May 6, 1983, Claimant was warned by letter about a safety rule violation. Carrier alleges that Claimant's injury incidence was seven times greater than the average employee. Carrier argues that the sum of the evidence indicates that Claimant acted in a careless and dangerous manner on several occasions, a performance level which it cannot continue to tolerate in an employee. Carrier maintains that it has an obligation to protect the safety of the affected employee, other employees, and the general public. Carrier cites several awards holding
that persistent unsafe work practices committed by an employee constitutes legitimate grounds for dismissal.
After review of the record, the Board finds that Claimant should be reinstated to service, with seniority unimpaired, butwith no back pay.
It is not the purpose of this Board to rehear an investigation that Carrier held but only to determine .if the discipline imposed was arbitrary, capricious or an abuse of discretion. '
This case presents the identical issue dealt with by this Board in Case No. 47. However, distinguishing facts in the present case lead us to a different conclusion than that rendered in Case No. 47.
In the present case, we rind that Carrier has failed to establish persistent safety rule violations committed by Claimant. The evidence presented by Carrier indicated that Claimant injured himself on seven occasions in five years, a higher incidence than that of the average employee. However, we agree with those awards cited by the Organization that injury itself does not establish negligence or safety violation paZ sa. Absent additional evidence, it cannot be assumed that injury was caused by negligence. To the contrary, the
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RwZ PC) .,A,2)