PUBLIC LAW BOARD N0. 4373
PARTIES SOUTHERN PACIFIC TRANSPORTATION CO. )
(EASTERN LINES) )
AWARD N0. 2
TO AND )
CASE NO. 2
BROTHERHOOD OF MAINTENANCE OF WAY )
DISPUTE EMPLOYES )
STATEMENT OF
CLAIM:
1. Carrier violated the effective Agreement when Houston
Division Machine Operator D. L. Gibson was unjustly
suspended for the period May 8, 1987 to and including
June 6, 1987.
2. Claimant Gibson shall now be paid for all time lost
at dozer rate of pay for period May 8, 1987, to and
including June 6, 1987, and with charge letter of
May 15, 1987, removed from his personal record.
HISTORY OF DISPUTE:
At the time of the incident giving rise to the claim in this case
Claimant was employed as a machine operator on the Carrier's Houston Division.
On May 6, 1987 at approximately 2:30 p.m. Claimant was operating
a bulldozer near Strang, Texas. A crosstie became wedged behind the blade of
the dozer. Claimant attempted to remove it and in doing so sustained a
personal injury.
Claimant attempted to locate the Roadmaster on ?Say 6 but could not
do so. Claimant left work without reporting the injury. The following day
he reported to work and contacted the Roadmaster. Claimant informed the
Roadmaster that he had sustained a back injury. The Roadmaster requested
Claimant to confirm that fact in writing. On :fay 8 Claimant completed a
Form 2611 concerning his injury, and thereafter consulted a physician.
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The Carrier notified Claimant to appear for formal investigation.
By letter of June 1, 1987 Claimant was notified that as a result of the
evidence adduced at the investigation he had been found guilty of violating
Rule 607(1) and (2) providing that "[E]mployees must not be: (1) careless
of the safety of themselves or others; (2) negligent; . . ." and Rule 806
providing in pertinent part that all on duty personal injuries ". . . must
be promptly reported to officers on prescribed form." The letter also
informed Claimant that he was assessed a thirty-day suspension.
The Organization grieved the discipline. The Carrier denied the
grievance. The Organization appealed the denial to the highest officer of
the Carrier designated to handle such disputes. However, the dispute remains
unresolved, and it is before this Board for final and binding determination.
FINDINGS:
The Board upon the whole record and all the evidence finds that
the employees and the Carrier are employees and Carrier within the meaning
of the Railway Labor Act, as amended, 45 U.S.C. 55151 et seg. The Board
also finds it has jurisdiction to decide the dispute in this case. The
Board further finds that the parties to the dispute, including Claimant, were
given due notice of the hearing in this case.
In our opinion the record in this case contains substantial
evidence supporting Claimant's guilt.
With respect to Rule 806 there is conflicting testimony as to
whether Claimant actually informed the Roadmaster on May 7 that he had
sustained an on-duty injury. However, the credibility of witnesses who
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testify at an investigation is a determination belonging exclusively to the
Carrier which will not be disturbed in the absence of evidence that the
Carrier abused its discretion. The record in this case contains no such
evidence. However, more central to the violation of Rule 806 is the fact
that Claimant did not complete the Form 2611 concerning his injury until two
days thereafter. In view of that fact we cannot conclude that Claimant
reported the accident promptly, as required by the Rule.
With respect to Rule 607 Claimant admitted that he was in a twisted
position at the time he attempted to free the tie' and when asked what caused
his injury Claimant responded "[B]eing in the wrong position at the wrong
time." It is a proposition too well established to require citation to
authority that a Carrier is not required to prove by independent evidence
material facts which are admitted by an accused. Accordingly, we find no
support for the Organization's contention that the Carrier failed to establish
a violation of Rule 607 because it called no witness to substantiate that
fact.
However, we believe the Organization's point that the discipline
was too severe is well taken. It is fundamental that discipline must be
progressive, and we believe that in this case it was not. Although, as the
Carrier points out, Claimant has committed several rules violations over his
nearly ten years' service with the Carrier, he has never been assessed
more than demerits. While we believe the Carrier was within its prerogative
to assess Claimant a suspension as progressive discipline, we think the
length was excessive. We believe under the circumstances of this case
Claimant should have received no more than a fifteen-day suspension.
Accordingly, we will reduce Claimant's suspension by half.
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AWARD
Claimant's suspension shall be reduced to fifteen days. Claimant
shall receive restoration of benefits and pay for all time lost in excess
of fifteen days.
Claim denied in all other respects.
The Carrier shall make this award effective within thirty days
of the date hereof.
William E. Fredenberge , Jr&;'
Chairman and Neutral Member
ZO
R. 0* Naylor
Carrier Member
DATED: ~t~-...
S. A. H mons, Jr.
Employee Member