PUBLIC LAW BOARD NO.
4244
Award No.
252
Case No.
259
Carrier File No.
14-99-0091
Organization File No. 240-1313-992.CLM
( BROTHERHOOD OF MAINTENANCE
( OF WAY EMPLOYES
(
Parties to Dispute: ( -and
(
( BURLINGTON NORTHERN SANTA FE RAILWAY
Statement of Claim: 1. The Carrier violated the current Agreement when dismissing
Mr. J. L. Kaye from service for his alleged violation of Rule S
1.1, S-1.5.1 and S-1.5.2 of the Maintenance of Way Safety Rules
when he allegedly failed to be in compliance with good
housekeeping rules on March 16, 1999 at Gallup, New Mexico.
2. As a consequence of the Carrier's violation referred to above,
Mr. Kaye shall be returned to service, the discipline shall be
removed from the Claimant's personal record, and he shall be
compensated for all wages lost in accordance with the
Agreement.
Public Law Board No. 4244
Award No. 252
Case No. 259
Carrier File No. 14-99-0091
Organization File No. 240-1313-992.CLM
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, after
hearing and 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
On March 16, 1999, the claimant, J. L. Kaye, was assigned to work as a truck driver
on section vehicle BNSF 94971. At approximately 11:45 a.m., the claimant tied down a rail in
the bed of his truck. The claimant then proceeded to the rear of his truck, at which time he
tripped and fell to the ground. As a result, the claimant sustained injuries to his right
shoulder, leg and thumb. The claimant properly notified his supervisor that he had sustained a
personal injury, and subsequently received medical treatment at the local hospital.
The Carrier instructed the claimant to attend an investigation in order to determine the
facts and his responsibility, if any, in connection with his failure to comply with good
housekeeping rules, which resulted in the claimant sustaining a personal injury at Gallup, New
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Public Law Board No. 4244
Award No. 252
Case No. 259
Carrier File No. 14-99-0091
Organization File No. 240-1313-992.CLM
Mexico on March 16, 1999. As a result of the formal investigation conducted on April 6,
1999, the Carrier dismissed the claimant from
service for
violating Rules S-1.1, S-1.5.1 and 51.5.2 of the Maintenance of Way Safety Rules. For the following reasons, the Board finds that
the discipline assessed the claimant was harsh and excessive under the circumstances
presented.
The following rules are relevant to the Board's decision in this case. Rule S-1.5.1
entitled "Housekeeping," provides as follows: "Keep work locations, vehicles and the inside
and outside of buildings clean and orderly at all times." Rule S-1.5.2 entitled "Inspection,"
provides as follows:
Inspect your work location and vehicles for any condition that
might cause injury, property damage or interference with service.
If you find such a condition, take necessary action to protect
against the hazards or discontinue activities in the area or with the
vehicle. Promptly tag where appropriate and report any defects
or hazards to your supervisor or person in charge.
At the investigation, roadmaster A. C. Richardson testified that the grievant's vehicle
was "cluttered and disorganized." Roadmaster Richardson further stated that the grievant
acknowledged the fact that his vehicle was disorganized. Rule S-1.5.1 provides that the
claimant must keep his vehicle clean and orderly at all times. The Board finds that the bed of
the claimant's truck was somewhat disorganized at the time the claimant sustained his personal
injury. Additionally, the Board finds that the claimant may have been able to store some of the
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Award No. 252
Case No. 259
Carrier File No. 14-99-0091
Organization File No. 240-1313-992.CLM
tools which were in the truck bed inside tool boxes located on the sides of the truck. Such
storage would have resulted in a more organized vehicle. Based upon these findings, the
Board determines that the Carrier has satisfied its burden of proof that the claimant violated
Rule S-1.5.1.
The record indicates that the claimant tripped and fell on the hydraulic hoses connected
to the Matweld power plant which was being transported in the bed of the grievant's truck.
Rule S-1.5.2 provides that the claimant must inspect his vehicle for any condition that might
cause injury, property damage or interference with service. The record indicates that there
was little room for movement in the bed of the claimant's truck due to the size of the Matweld
power plant which was being transported by the claimant. The grievant admitted that he
violated Rule S-1.5.2, and the Board finds that the claimant failed to conduct a reasonable
inspection of his vehicle for conditions that might cause injury, property damage or
interference with service. Thus, the Board concludes that the Carrier has presented sufficient
evidence which would indicate that the claimant violated Rule S-1.5.2.
The Carrier's discipline policy provides, in part, as follows:
PART II: Serious Offenses
This part of the Policy describes the corrective action prescribed
for a serious offense. A serious offense is not sufficient by itself
to warrant dismissal, but substantial suspension and retraining
may be appropriate. Furthermore, if the employee commits
two serious offenses within a specified period, not to exceed
three years, he will be subject to dismissal. For purposes of
Public Law Board No. 4244
Carrier File No. 14-99-0091
Organization File No. 240-1313-992.CLM
illustration, the following rule violations are considered serious
(this is not an exhaustive list):
· Failure to perform duties causing or contributing to a
serious derailment, damage to rolling stock, track
equipment or shop machinery, or injury to others.
· Any other serious violation of General Code of Operating
Rules, Maintenance of Way Rules, Safety Rules or
General Instructions issued to employees.
An employee who commits a serious offense is assigned a Level
Dismissal- second serious offense within probationary period
In a case where an employee has committed a second serious
offense within an assigned probationary period, he will be subject
to dismissal.
The claimant's personal record reveals that he was issued a Level S suspension on
January 30, 1998, for failing to follow instructions which resulted in a personal injury. In this
case, however, the Board finds that the Carrier has presented no evidence which would cause
this Board to conclude that the instant rule violation by the claimant rose to the level of a
serious offense. Moreover, the claimant's failure to perform his duties as outlined above did
not cause or contribute to the injury of others. There was no other evidence presented which
would support a classification of the claimant's violations as a serious offense under the
discipline policy. Thus, the Board concludes that the discipline assessed the claimant was
excessive under the circumstances presented.
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Public Law Board No. 4244
Award No. 252
Case No. 259
Carrier File No. 14-99-0091
Organization File No. 240-1313-992.CLM
The Board further notes that F. DuBoise, the claimant's foreman, was charged with the
same rule violations as the claimant in the instant case. However, foreman DuBoise accepted
the conditions of a waiver and received a fifteen-day suspension and a fifteen-day deferred
suspension despite his lack of a sterling prior work record with the Carrier. In addition, the
Carrier failed to prove or even mention Rule S-1.1 at the investigation, and there is no
evidence to support a finding that claimant violated that rule. The Board finds that based upon
the foregoing facts and circumstances of this case, including consideration of the claimant's
prior record, a thirty-day suspension is warranted. Accordingly, the claim is sustained, in
part, as set forth in the Award.
AWARD
The claim is sustained, in part, as follows. The claimant is hereby reinstated to the
service of the Carrier. The discipline assessed the claimant is reduced to a thirty-day
suspension without pay. The claimant shall receive back pay from such date after the period of
suspension for which it can be medically certified he was capable of returning to work until the
date of his reinstatement. The Carrier is to comply with the terms of this Award within thirty
(30) days from the date of issuance.
1
Thomas M. Rohling; Carrier Ivmber
=a--I
LLL
R. B. Wehrli, Employee Member
onathan I. Klein, Neutral Member
This Award issued the3
)I
'day of
J
, 2000.
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