Brotherhood of Maintenance of Way Employes
 PARTIES TO DISPUTE: and
 Burlington Northern and Santa Fe Railway
 (Former ATSF Railway Company)

 STATEMENT OF CLAIM:















FINDINGS AND OPINION:
Upon the whole record and all the evidence, the Board finds that the Carrier and Employees ("Parties") herein are respectively carrier and employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the dispute herein.

 The Claimant, Mr. Larry G. Hannah, suffered an on-duty personal injury on September 22, 2003. As of that date, he was 56 years old, and had been in the Carrier's employ 34 years. His personal record was clear of any disciplinary entries, and shows only one personal injury, a bruise or contusion to his foot, with the loss of three days' work in 1980.

 In an employee personal injury report filled out on September 23, 2003, he described his injury on September 22 in the following terms:

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 Public Law Board No. 4244 Award No. 327
 Case No. 334

 In a part of the injury report which asks, "Was there anything wrong with the equipment, work procedures, or work area which led to this accident/injury?" the Claimant wrote,

His injury was diagnosed as lumbar ligamentous strain and lumbar myositis, according to the injury report. He was withheld from work by his physician for at least one week.

 On September 29, 2003, the Carrier's Division Engineer wrote the Claimant, directing him to attend an investigation on October 6, 2003,

The investigation was postponed to October 17, 2003, by agreement of the Parties. The Claimant was represented by the Organization's Assistant General Chairman. A transcript of testimony and evidence was prepared, and appears in the record before this Board.

 The Claimant testified that the spike puller, a tool which weighs about 49 pounds, was stored in its usual place on the section gang's truck. He had retrieved it from this site many times over the years. He described the movements necessary to retrieve the tool:













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 Case No. 334





























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 Public Law Board No. 4244 Award No. 327
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The Claimant was questioned about whether he had ever reported the congested work area, which he had described in the injury report as leading to the injury. He gave these responses:


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 Public Law Board No. 4244 Award No. 327
 Case No. 334





Roadmaster Terry D. Smutzer presented testimony and evidence with respect to his investigation of the injury and the surrounding circumstances. It was his opinion that the truck was rather congested, more than it should have been, and the spike puller should have been lifted with the truck's boom:



















He further stated that modifications to the truck were underway at the time of the investigation:






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 Public Law Board No. 4244 Award No. 327
 Case No. 334




Following the investigation, on November 5, 2003, the Claimant was advised that he was being assessed a Level S, 30-day record suspension for violation of Maintenance of Way Operating Rule (MWOR) 1.1.2, and Maintenance of Way Safety Rules (MWSR) S-1.4.7 and S-27.2. These Rules read as follows:

 MWOR 1.1.2


MWSR S-1.4.7




MWSR S-27.2


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 Public Law Board No. 4244 Award No. 327
 Case No. 334

The Organization promptly appealed the Carrier's disciplinary decision to its Labor Relations Department. The Organization points out that the Claimant has 34 years of service with only one previous injury. He was characterized by Roadmaster Smutzer as a "good worker . . . who you could always depend on to perform whatever task he was asked to do." The Organization believes he suffered an injury unloading the 49-pound piece of equipment in the way this task has always been done. He was not twisting his body, and the congested condition of the truck was its normal state. The Claimant had no reason to believe that his task was hazardous, since it had been performed in the same manner many times before.

 The Organization further argues that the changes being undertaken by the Carrier is recognition that its previous work practices were flawed. It denies that the Claimant violated any of the cited Rules, and asks that the Claimant's record be cleared of this disciplinary entry and he be made whole for any lost wages.

 The Carrier rejoins that substantial evidence was developed, including the Claimant's own testimony, that he did not follow safe lifting techniques while picking up the spike puller. It points to his own statement on the injury report:

The Carrier also points to an exchange of questions and answers by the conducting offcer and the Claimant:




The Carrier argues that a continuing problem affecting employee safety is the fact that individuals develop bad habits. When an employee does something that is unsafe, but does not get hurt, he may falsely assume that there's no inherent danger in his actions. It suggests that the Claimant in this case had been violating basic safety rules for unloading tools for so long that he failed to see the danger. Just because he had never been injured before does not mean that his methods were inherently safe.

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 Public Law Board No. 4244 Award No. 327
 Case No. 334

 The Carrier fin-ther contends that the Claimant admitted that the spike puller could have been unloaded by the truck's boom. By failing to use an alternative to physically lifting it, he violated MWSR S-1.4.7. The Carrier also states that the new method of lifting material out of the truck which was pointed out by the Organization might have been developed at an earlier date had the Claimant reported the congestion on the truck before he was injured, thereby saving him from the injury which he suffered. The Carrier asserts that he was proven guilty of the cited Rules, and a 30-day record suspension is not harsh nor excessive.

 Resolution of this dispute is problematical because both Parties have presented persuasive arguments. The Organization is rightfully offended because a long-time employee with an excellent record, and only one prior personal injury, has been "harassed and intimidated" (the Organization's words) by charging him with multiple offenses, when he has already suffered the trauma of injury. He was only carrying out his assigned task in the way he has always done so, with the full knowledge of his Foreman.

 Furthermore, the Organization believes that the Carrier recognizes that the work practices as carried out by the Claimant were flawed. The proof is in the fact that the section truck (and other vehicles) are being modified so that employees need not perform their lifting tasks in the manner which resulted in the Claimant's injury.

 On the other hand, it cannot be disputed that the Carrier scored a persuasive point in its argument that when an employee does something that is unsafe, but does not get hurt, he may falsely assume that there's no inherent danger in the action.

 There is merit in the arguments of both Parties. Unquestionably the Claimant is a very good worker. He has many years of experience and hard physical labor behind him, and heavy lifting is characteristic of the work that Trackmen do on a daily basis. He admitted, however, on his injury report, that he twisted while maneuvering the 49-pound spike puller in a congested area on the truck. Twisting the spine while it is burdened with a weight of this magnitude, even on good footing, is conducive to lower back injury. Although moving the tool by hand was perhaps the most expedient way, in the brilliant light of hindsight, it was not the safest way.

 The Carrier shares in the responsibility, to a degree. The truck modifications it has initiated as the result of this injury is indeed suggestive, as the Organization argues, that its work practices were flawed. Apparently, the Claimant was never warned that his work practices were potentially hazardous. The Board does not believe that his work was not done in secret, so that no one of higher rank, including his Foreman, were aware of what he was doing. This is not to say, however, that an employee who knows of a hazard may gamble that he can ignore the hazard and then say, "That's the way we always did it." Employees must always be on guard for their own safety, particularly so in a work environment that has the potential for personal injury. Such an environment is that of employees in the Carrier's Maintenance of Way Department. Further,

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 the record indicates that the section truck used by the Claimant's gang has been maintained in a "congested" way for a long period of time, and no one of greater rank than the Claimant has taken the initiative to rectify the conditions. Asked how long the angle bars had been in their place on the truck, the Claimant said, "a 100 years." The Board takes it that this ambiguous response suggests an extended period of time beyond precise measurement.

 The Carrier has conclusively shown how the Claimant violated MWOR 1.1.2 and MWSR S-1.4.7. As for MWSR S-27.2, this Rule, as read into the transcript, appears more informative that admonitory. As for severity of the discipline, the Board believes that even a 30-day record suspension, as light as it is, is excessive for an employee with no previous disciplinary entries, and only one relatively minor injury in 34 years of labor as a Trackman. This is particularly true when the Claimant acted in a way which has neither been criticized, nor resulted in injury. The discipline will be reduced to a ten (10) day record suspension. There is no showing in the record of any loss of wages by the Claimant. One might ask what difference does it make, a 30-day suspension as opposed to a 10-day suspension. In the Carrier's employment of the doctrine of progressive discipline, it might make a significant difference if the Claimant were to be found guilty of some other offense in the future.





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R. B. Wehrli, Employe Member William L. Yeck, r Member

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 Date

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