PUBLIC LAW BOARD NO. 4244
Award No. 212
Case No. 216
( BROTHERHOOD OF MAINTENANCE
( OF WAY EMPLOYES
(
(
Parties to Dispute: ( -and-
(
( BURLINGTON NORTHERN SANTA FE RAILWAY
Statement of Claim. 1. That the Carrier's decision to suspend Western Region Trackman
Carlos P. Franco from service for ninety (90) days was unjust, as
well as the additional three (3) year probation period is excessive.
2. That the Carrier now rescind their decision and pay for all wage
loss as a result of an investigation held 9:00 a.m., November 7,
1996 continuing forward ands otherwise made whole, because
the Carrier did not introduce substantial, credible evidence that
proved that the Claimant violated the rules enumerated in their
decision, and even if the Claimant violated the rules enumerated
in the decision, suspension from service is extreme and harsh
discipline under the circumstances.
3. That the Carrier violated the Agreement particularly but not
limited to Rule 13 and Appendix 11, because the Carrier did not
introduce substantial, credible evidence that proved the Claimant
violated the rules enumerated in their decision.
Public Law Board No. 4244
Award No. 212
Case No. 216
INTRODUCTION - ._
This Board is duly constituted by agreement of the parties dated January 21,
1987, as amended, and as further provided in Section
3,
Second of the Railway Labor Act
("Act"),
45 U,S.C.
Section
153,
Second. This matter came on for consideration before the
Board pursuant to the expedited procedure for submission of disputes between the parties.
The Board, upon review of the entire record, finds that the parties involved in this dispute are
a Carrier and employee representative ("Organization") within the meaning of the Act, as
amended.
FINDINGS
The claimant, Trackman Carlos P. Franco, was suspended pending a formal
investigation after he was subjected to a reasonable cause breath alcohol test following a
personal injury accident on September
25,
1996. The test revealed measurable quantities of
alcohol in the claimant's system. In a notice of formal investigation dated October
14,
1996,
the claimant was charged with allegedly failing to perform his duties safely while stacking
track material at the Calwa Yard, and having a measurable level of alcohol in his system while
on duty in violation of Rules 1.1.1,
1.1.2, 1.3.1, 1.5,
1.6 and
50.2.3
of the Safety Rules and
General Responsibilities for All Employees, effective January
31,
1996.
After a postponement of the investigation, the claimant signed an agreement to
receive a Level
5
conditional suspension for a first time Rule 1.5 violation. The claimant
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agreed to waive a formal investigation on the charge of having a measurable level of alcohol in
his system while on duty and on company property. The formal investigation into the
remaining charges leveled against the claimant was conducted on November 7, 1996. On
December 10, 1996, the Carrier issued claimant notice of a ninety-day suspension
commencing September 26, 1996, up to December 29, 1996. He also was placed on probation
for a period of three years for violation of the remaining rules contained in the letter of
charges.
The record of the formal investigation reveals the following facts. The claimant
and another trackman were instructed to sort through a neatly stacked pile between three and
four feet in height consisting of a mixture of 132 and 136 pound metal angle bars. The two
employees' assignment was to search through the stack for 136 pound bars. The two trackmen
began to remove the angle bars from the top of the stack, and place the bars they did not want
on a loose pile next to the stack. With the claimant turned to one side, his partner in the
sorting process grabbed an angle bar which slipped off the stacked pile of mixed angle bars
onto the claimant's left foot causing a bruise.
The claimant initially testified the stack of angle bars was "scattered," but it was
later established at the hearing that only the very top layer of angle bars on the stack was less
than perfectly arranged. While at first the claimant testified that he did not see his coworker
handle the angle bar which fell on his foot, he later stated that ". . . before I turned to my
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right, I looked across, he had something. He went to grab something, but then I turned
around and that's when it slipped out of the pile." (Tr. 24). Although the claimant's testimony
at hearing would suggest that his partner was responsible, in part, for the injury, he declined
to answer the question on the injury report form he completed whether the accident was caused
by the conduct of any person other than himself.
Apart from the suggestion that the angle bars placed in the original pile were
stacked incorrectly, the claimant admitted the duties in question could have been performed
safely without injury had the two employees taken their time, instead of being in a hurry. The
claimant asserted he was under time constraints by the need to get the angle bars to Madera for
use by a welder. A supervisor, Manuel Fernandez, rushed the trackmen to complete their
task, according to the claimant. On further examination, however, the claimant acknowledged
he had assumed they were to hurry through their assigned task. He also admitted the injury
could have been prevented had he taken his time and employed greater care. The claimant
further agreed that the alcohol content in his body on the morning of the accident (the two
breath alcohol tests administered three hours after the accident recorded alcohol levels of .093
and .084, respectively), created an unsafe condition which contributed to his injury.
The Board concludes that the claimant failed to take the safe course of action.
His being under the influence of alcohol was the primary cause of his lack of attention to the
task of sorting the angle bars, and the key factor contributing to the accident and his injury.
The only unsafe condition at the scene of the accident was caused by the lack of attention to
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safety by the claimant. The Board remains unconvinced that the working conditions of
Calwa Yard at the scene of the accident on September 25, 1996, were such as to cause or
otherwise contribute to the personal injury suffered by the claimant.
The Board further finds that the discipline assessed is excessive under these
facts and circumstances. As previously noted, the principal factors leading to the injury were
the level of alcohol in the claimant's system, and the failure of the claimant (and his
coworker) to work in a less hurried, more careful manner. The Board notes the claimant
took a conditional suspension under the bypass program for the initial Rule 1.5 violation. At
the time of the investigation, he had completed three weeks in a rehabilitation center. The
Board concludes, after consideration of the claimant's past disciplinary record in his twentyfour years of-service, together with his acceptance of the conditional suspension arising out
those facts constituting the primary cause of the accident, that the suspension should be
reduced to sixty (60) days. Rather than the three-year probation which the Board determines
to be excessive under these facts, it is ordered that the claimant will be subject to a one (1)
year probation.
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Case No. 216
AWARD
The claim is sustained, in part. The claimant's suspension is reduced to a
sixty (60) day suspension with one (1) year probation. The Carrier will compensate the
claimant for the net wage loss resulting from the remaining thirty (30) days of suspension
within thirty (30) days of this Award.
''Thomas M. Rohling, Carri ember Clarence F. Foose, Employee Member
onathan I. Klein, Neutral Member
This Award issued the day of
N
~~ , 1997.
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