PUBLIC LAW BOARD NO. 4338
PARTIES) UNION PACIFIC RAILROAD COMPANY
TO )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM:
1. The discipline (120 day suspension) assessed Section Foreman
W. E. Edwards for alleged violation of various company rules, as
indicated in Mr. B. M. Brown's letter of March 17, 1989, was
simply too severe in light of the fact that Mr. Edwards' personal
record covering a 23 year career was blemish free until this
incident.
2. The 120 day suspension must be set aside and the claimant
must be returned to service immediately and compensated for all
time lost.
FINDINGS: This Public Law Board No. 4338 finds that the parties
herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, and that this Board has jurisdiction.
In this dispute the claimant was notified to attend an investigation on February 28, 1989 at Rawlins, Wyoming. The investigation
was held to determine the facts and place the responsibility of
the claimant W. E. Edwards allegedly unsafely operating Company
vehicle at Mile Post 769.75 at approximately 1':30 p.m. on January
20, 1989.
At the outset of the investigation the Union contended that the
claimant could not prepare a proper defense because the letter of
charges was not precise in accordance with Article 48(C) of the
Agreement.
R. E. Loftin, Manager Track Maintenance, testified the claimant
contacted him on Saturday morning, January 21, advising that one
of his men had been hurt on the job on January 20.
The claimant testified that they were inspecting track and found
a plate out of the track and backed up to the located at Mile Post
769.75 when Mr. Madrid got out of the truck to see if he could put
the tie plate back in the track. The claimant then testified that
Mr. Madrid apparently could not get the tie plate back in the track
so he came back to the truck to get more tools.
The claimant further testified that Mr. Madrid again returned to
the truck to get some more tools and told him he needed some help
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Award No. 34
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so he got out of the truck to give him a hand. The claimant
stated he had left the truck in reverse gear with his foot on
the clutch, but he though he had it in neutral. He testified
that when he got out of the truck and took his foot off the
clutch, the truck jumped backward, striking Mr. Madrid.
The claimant testified that when he went to the back of the
truck, Mr. Madrid was sitting on the ground but he did not think
he had an injury, so he did not report it right away. He also
testified that Mr. Madrid appeared to be Okay and that he told
him he was Okay.
The Union objected to such being hearsay testimony, but such is
admissible. This testimony is admissible when such testimony
involves a claimant's statements. Such does not constitute
hearsay.
The claimant testified that he thought the work which needed to
be done was a one man operation so he remained in the truck watching for trains in both directions. He stated he reached for his
hard hat, and his foot slipped off the clutch. He testified he
forgot the truck was running and was in reverse gear.
The claimant stated he felt one hundred percent responsible for .
the incident which resulted in the injury to Mr. Madrid.
Mr. Madrid told the claimant he was not injured, and he did not
wish to see a doctor and continued to perform his normal work for
the rest of the day.
The Board has studied and reviewed all the testimony and evidence
of record. There is no question but that the claimant was guilty
as charged. The only issue remaining before the Board is whether
or not the discipline assessed is harsh or unjust.
The claimant has almost 23 years of service with a very good discipline record. 120 days suspension is an extreme penalty to an
employee. This referee might, if he were the deciding officer,
only assess 60 days of suspension. However, that is not the prerogative of the referee.
The referee does find that any discipline assessed in excess of
90 days is too severe. On that basis the Carrier is instructed
to pay the claimant for the last 30 days he was suspended.
AWARD: Claim sustained as per above.
ORDER: The Carrier is directed to comply with this award within
thirty days from the date of this award.
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Award No. 34
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Dated: July 14, 1989.
Preston . Moore, Chairman
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