PUBLIC LAW BOARD NO. 4338
PARTIES) UNTON PACIFIC RAILROAD COMPANY
1'O )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM: Claim for removal of _t_he discipline of 30 demerits imposed upon section Foreman
M. F.
Schu_ltefor the alleged
violation of Rules A, B, D, I, L and 1511--which was arbitrary,
capricious, and unwarranted, on the basis of unproven charges and
in violation of the Agreement. Claimant's record to be cleared
of the demerits and he be compensated for any wage loss, if any,
suffered.
FINDINGS: This Public Law Board No. 4338 finds.that the parties
herein are Carrier and Employee
within
the-meaning-of the Rail-wav Labor Act, as amended, and that this Board has jurisdiction.
Tn this dispute the claimant was notified to attend an investigation on Mar.,h 10, 1986 in Marysville, Kansas. The claimant
was charged with possible violation of Geppral Rules A, B,-D, I,
and L and Work Procedures Rule 1511
of
the Maintenance of Way and
Signal Rules Book, revised April 28, 1985. Pursuant to the investigation the claimant was found guilty as charged and assessed
30 demerits.
The claimant herein was a Section F-)~reman of Gang .3204 nn thF
date in ceestion. James Marksman, a sectionman, testified that
on this date they had proceeded to the dump with two ties in
their truck. tie stated he climbed up on the truck and started
throwing these pieces off, and the pieces weighed from approximately 26 up to 60 pounds.
The Board hay studied the testimony of all the witnesses involved
including the claimant. The claimant was the Section Foreman and
was seated in the cab of the truck at the time the incident took
place.
This incident involved Sec-tionmanJim Marksman climbing up on
the truck- T'sis employ-.,e picked
tip
one piece of ti- approx·-mately
two feet long and commenced to sling it when it splintered on both
ends, and a splinter on one end caught on the palm of his right
glove, and he was thrown through the air and landed on his back
behind the trick.
The testimony of record establishes that there was no assistance
or directions the clai-_.ant could -have, given to Mr. Marksman or
the other -mployees in disposing
of or
dumping of
the
ties and
parts thereof The testimony indicates that claimant instructed
the employees to dump the ties and cautioned them to be careful
in so doing.
4338
Award No. 6
Page 2
There is substantial-testimony regarding the fact that claimant
was in the cab
of
the truck at the time of the incident. Evidance indicates-the claimant was filling out a report.
'there is a great deal of testimony in the record that there were
other means of removing the ties from the truck, but there is no
evidence that the employees or the claimant had been notified not
to perform this work in the manner in which the task was actually
accomplished.
It was also suggested that it might be a safer manner to have
parked the truck in a different location. This all may well be
true, but the evidence does not establish that the claimant violated the rules of the Carrier or was negligent in any manner.
Under the circumstances herein the discipline assessed will be
set aside and the claimant will be compensated for any wage loss.
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.
Preston 3'. Moore, Chairman
union Member
Carrier Member
Dated: November 10, 1987