PUBLIC LAW BOARD NO. 4450


P.kRTLS TO TH= DlSPT'TF :

 UNION PACIFIC RAILRCAD COMP:`i-N

 (Western Region)

    - and -


BROT'rTGRHCOD CF LCCOMOT:VE ENGLLEERS

 S T ATENIEN OF CL.>Lvf :

    R. N. Sur`eor., 54=1-'2-5115 : "...appeal the Upgrade Level 1 Discipiire assessed to Engineer R. N. Surgeon and request the removal of discipline assessed and pay for any and all time lost with all senicrity and vacation :fights restored unimpair ed."

OPINION OF BOARD : While walking ilom the yard office to his yard engine at the beginning of his shin at Barnes Yard :n the Por'.and :e^ninal on ,ece:nber 28, 2001, Engineer R. V. Surgeon ("Claimant's, slipped in the mud and twisted his knee and ankle. He duly reported the injury' o his supervisor, 1(TO V. E. Shultz, who prempuly charged him with violating the following Carrier Rules:

    Rule 1.1.3: A:ert and Attentive: B=loye-.s musr :e careful to prevent injuring themselves or others. They must ;,^e alert and attentive when performing their dirties and plan their work to avoid mjnry.


    Rule 30 =: ?-ecaudors Against Slips, Trips. and Falls: Take precautions to avoid slipping on: Slick surfaces such as recently washed waxed ::cons, oil, grease or soap on the :walkway. Snow, ice, wet spots or other hazards caused by mc:ement :weather. Use appropriate-footwear and accessories and/or other spread sand/salt traxrsc las approonatel on ice before proceeding wizen icy conditions exist. when wig keep your eves on the pathway andif hazardous under foot conditions exist: Keep your hands out of pockets for balance. Take short, deliberate steps with toes pointed outward. 'When stepping over. cbjecs, mch as ris, be sure ;our Scot :pot is tlar before moving your= .`pct.

                                  AWARD NO. 145

                                  NbIB CASE NO. 145

                                  UNION CASE NO. 20112

                                  COMPANY CASE 10.1251001

    Following inresti gati on and h earng on : aruary 17, ? 001, Carrier assessed ar. Upgrade Level


1 Discipline against :he per=oral work record of Claimant, as set tonhin the letter of January25, 200

 1, from Superintendent K. H . Hunt:

    ,kfter having ar-.-u1y considered _vtde~ce present°.d at >1;e investigstion held :n Portland CR, on Wednesday, :anuary L7, 200 1. 1 ftnd :be feilowng charges have been sustained: while you were employed as Enginrer nn ale`: 3A5o-=5 at ac:: ozaatoly 5:00 pm, ?. T., on December _3, :000, =ear fit.?. 5.5, Barn-s on r:.e?ortland Subui·: ision X330. ou ·.vcre not plot and attentive cswing=jury to yourself while ;;epping over rail whc :oT^ene= ;o pe:form ;our duties. Your acticrs we:e in violation of Rile :.1.2 Of'~e Union Pv.c Rules. e~ec~veApn7 -,=000, and Rule 30.1 of lrc "nion ?aeifc Safety -Rules, effective October =5, ::98.


    T'nis is a L-rel 1 rates ~rclaon. Your :urent disa:pune status of Level ;, plus :his Level l violation

    results in assessrrent a: the ti-to of Le ve: : d:sc:c:;ae. L:camde Level 4 discipline is asfollows: : airry

    days off work without pay and must ;.ass necessar: annual operating :ales or Aurvaient :n order to

    rC;L7n to work.


    The Orgar=:.ation's appeal of tile discipiir:-.-

y action in :his case must be sustained. On the
 procedural aspect of this case, Carrier fail --d to ec`.~ctively refute the Ortganization's showing that
 Claimant never received the Notice of 'zvescgacon. Beyond that, there is a complete failure of
 proof in this record that Claimant vieia:ed the C led safety rules. Charging Ofncer Schultz told
 Claimant approximately one week after incident but prior to the hearing, that he had failed to be
 alert and attentive when incident occur. ed. At the investigation, however, MTO Schultz testified
 that he was not present when Claimant slipped aid injured himself and had no directImowledge that
 Claimant had not been ale.^, and attentive. Moreover, the MTO corroborated the testimony of
 Claimant and Engineer Fe-.burn that there was a pool of mud. soda ash and other debris in the area
 Claimant's testimony that :ze mod to cross l the most accessible place and had complied with the
 requirements of the Ruin a no: re.°.ruted b.· ant precative sridence. Pose-accident sperulatcn and
 conjecture that the charge3 empieyee'`must ~2 v e been" negligent or careless, by :he ch2t3ing oiticer
 who did not witness Claimant's :all. :s -et suf~.lc:ent to car.-/:he raquisite ~rddendar/I burden.
 AWARD N0. 145
 NMH CASE NO. 145
 UNION CASE NO. 20112
 COMPANY CASE NO.1251001

 AWARD
1) Claim sustained.

 2) Carrier shall implement this.ward within thirty (30) days of its execution 'by a majority of the Hoard.

 4~
 Union Member

 Dana Edward ;:schen, Caai.-man

 Company Member