STATEMENT OF CLAIM : Appealing the L^'1 GRADE Level 3 Discipline of Engineer B. A. Blanchard and request the expungement of discipline assessed and pav for all lost time with all seniority and vacation rights restored w^.i-mpaired. Action taken as a result of investigation held February =, 1995.
OPI\ZON OF BO.=.RD : On the night o`.Tanuar;;? 7, 1995, Claimant was assigned to the Los .4n-eles Engineer's Extra Board and was on duty pe-fotmina HG-Relief (dogcatching) service. Claimant and crew were transported to Montclair, California to doacatch the NPLAV-25 which had been tied down in the siding. The dispatcher informed Claimant's conductor of his intent to run another train around them, prompting the conductor to request a meal period which was approved by the dispatcher. Claimant was back in his consist preparing the locomotives for the eventual trip and did not have access to a radio and did not hear any conversations.
X-hen Clai-ant was informedby :h a conductor of the meal period, he elected to remain with the train ;~ hiie the rest of the crew took their lunch break. About 8:15, Claimant noticed the main line sig=tal go been indicating to him they-,, oulc' be ove.^-aken by- a train which was then still several miles a~v a;:. 'A, -he:he: 70 give a roll-by ~;~hen. he .main finailv zot past or simplv to get some mesh air.
- pLB No. 44SDClaimant took his flashlight and left the control cab to walk along side the track. As Claimant walked alongside the right-of-way, he apparently stumbled, rolled and slid some six feet down into a deep drainage canal. The canal apparently was empty of runoff water, but because it was slimy and slick at its bottom and side and the fall injured Claimant, he had difficulty climbing up the embankment. Claimant threw his flashlight up over the top and upon his return from the meal period, the conductor noticed the flashlight. found Claimant and then notified proper railroad authority. kff 0 Sutherland was called to the scene and tried as best he could to help Claimant out of the predicament. Due to the depth of and the steep angle of the banks of the ditch the fire department was called and Claimant eventually was extricated. As a result of the fall Claimant sustained a sprained ankle.
The investization recorded various descaptiors of the area in and around the Montclair siding at the point where the head end of the \~L--kV was situated, but there appeared to be consistent testimony regarding the edge of the runoff drainage ditch being some 12 to 17 feet away from the ballast edge of the main line. The record clearly indicated that Claimant was aware of the ditch as a potential hazard and the preponderance of evidence supports Carrier's conclusion that he failed to comply with specified Safety Rules:
Notwithstanding Claimant's culpabilin;, Carrier's disciplinary action in this case must be modified. It is not disputed that the Fonn 3 and Notice of Charge specified that a finding of guilt would involve an assessment of a Le·: el 1 discipline. Nor is it disputed that at the time Claimant had a clean discipline record. reflected in ;he F onn 3 as Level 0. Inexplicably, after Claimant declined to waive investigation and was found _>uilr;, t:=a MTO revised the For, 3 to show a Level 2 and the upgraded the discipline actually assessed :o L eve) 3, as shown. in the following Notice of Discipline:
This punitive and unjustified --scalaticn of the disciplinary action from a Level 1 to a Level 3 must be deemed arbitrary and u-_-.-asonabie. Accordingly, Carner must reduce the Level 3 discipline assessed in this matter to a Le·. el 1 and make Claimant whole for the difference.