PUBLIC LAW BOARD NO. 3558
PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
TO )
DISPUTE ) SOUTHERN PACIFIC TRANSPORTATION COMPANY
EASTERN LINES
AWARD
STATEMENT OF CLAIM
:
" 1. Carrier violated the effective Agreement when Assistant
Track Foreman D. W. Scott was unjustly demoted to the position of track
laborer.
2. Claimant Scott shall now be reinstated to his former position
of Assistant Track Foreman with his record cleared of alleged violation of
Carrier Rules A, 607 (1) and (2) and Rule 1051 in addition to the difference
in rate of pay between an assistant track foreman and a track laborer
commencing October 3, 1986, and to run concurrently until Mr. Scott is
restored to the position of Assistant Track Foreman." (MW-86-138)
OPINION OF BOARD:
At the time of the incident giving rise to the claim, Claimant held the position of
assistant track foreman. Claimant has been employed by the Carrier since September 1978.
As a result of charges dated September 19, 1986, investigation held September 25, 1986,
and by letter dated October 1, 1986, Claimant was disqualified as an assistant foreman and
demoted to track laborer because of events leading to the overturning of a crane.
On September 15, 1986, the regular foreman on system gang 35 was not present
and Claimant was in charge of replacing a road crossing at 23rd street in downtown Bryan,
Texas. The work required the use of a crane. At approximately 8:45 a.m., in the process
of removing a track panel consisting of two rails and twenty ties, the crane (which is rated
for a seven and one-half ton load capacity and which could handle the load involved
herein), which was operated by machine operator D. K. Taylor, turned over and sustained
damage of between $6,000 and $8,000. Taylor testified that the crane turned over after he
PLB 3558 Case No. 56
D. W. Scott
Page 2
picked up the panel and was moving down the track to set the panel down while keeping
the boom of the crane low in order to avoid overhead power lines. As a result, the panel
was about twenty four inches off the ground. During this process, Taylor was receiving
instructions and signals from Claimant. Taylor tested that he and not Claimant was
responsible for taming over the crane because he had the boom too loaded to handle the
load of the panel on the side of the crane.
Claimant tested that he was given instructions by his supervisor as to where the
panel was to be placed Claimant further testified that he was merely following the
instructions of his supervisor but could have moved the panel in another manner and in a
safer fashion as follows:
[Q] You stated earlier that the panel could have been moved in another
manner and been done in a safe condition. Would you explain to me
how this could have been done?
[A] Panel could have been moved by the crane picking it up, setting it on
the rail and let the front end loader come down and push it off.
[Q] Did you not have authority to have this done?
[A] The front end loader was broke down.
[Q] How long was it after that the front end loader had been fixed that
morning?
[A] I would say about 12:30 or 1.
[Q] Could the backhoe that you had there on the job site done the same
thing?
[A] Maybe. Maybe it could.
The question presented concerns the Carriers determination that Claimant did not
have the requisite fitness and ability for the assistant track foreman's position. Clearly, as
the assigned foreman on September 15, 1986, Claimant had responsibility for the safe
operation of the crane under his supervision at a time that he was giving instructions to the
crane operator. Inasmuch as the crane turned over while under Claimant's direct
supervision, we find the Carriers determination is supported by the record and we cannot
say that the Carrier's determination was either arbitrary or capricious, especially where
Claimant acknowledged that there were safer ways of performing the work.
PLB 3558 Case No. 56
D. W. Scott
Page 3
However, we do feel that extenuating circumstances exist so as to preclude a
permanent disqualification from the assistant track foreman's position. Specifically,
Claimant was under quite direct instructions from his supervisor concerning the placement
of the panel; the overhead power lines proved to be an obstacle; the machine operator
acknowledged responsibility for the incident and alternative methods of moving the panel
through use of the front end loader or backhoe may have delayed the process in that the
front end loader was not operating at the time of move and the backhoe was scheduled to -
perform other work in relation to completing the installation of the crossing. Considering -
those mitigating circumstances and further considering that the record does not demonstrate
that Claimant had similar problems in the past and balancing those factors against the
responsibility that a foreman has concerning the safety of his crew, we believe that in this
case, Claimant's seniority as an assistant track foreman should be restored but he should
not receive compensation for the time that he was disqualified from that position.
AWARD:
Claim sustained in accord with findings. Claimant's seniority as an assistant track
foreman shall be restored but without compensation for time lost.
Edwin K Benn, Chairman
and Neutral Member
o e - S. A.Hammons, r.
Carrier M r Organization Member
Houston, Texas
August 31, 1988