Due to track work underway. all employees should eeercise extreme caution while working on an around all tracks from the north end of the receiving yard to location "302" at Boyles Yard. Birmingham. AL.
All concerned must be on the lookout for uneven walkways, loose ballast and other walking hazards within this area.
Claimant was familiar with the notice. Tr. 62, 69. Nevertheless, on June 11, 1995 at 1710 hours, Claimant stepped on a rail anchor laying in loose ballast and twisted his free. Tr. 16. According to Claimant (Tr. 62):
Further, according to Claimant (Tr. 64-65):
Claimant had surgery on his knee and, as of the date of the investigation (August 11. 1990, Claimant was still under the care of a doctor. Tr. 72.
Substantial evidence supports the Carrier's determination that Claimant did not protect himself from injury as required by the Carrier's rules. The Carrier's Safety Policy Statement states in par- , that (Tr. 66) "[n]o action should be taken until we are fully aware of the hazards involved and have a plan to avoid injury." The rules generally require employees to work safely. Superintendent's Notice No. 113 issued Play 12, 1995 warned employees to be aware of "hazardous walking conditions" and further warned employees that they "must be on the lookout for uneven walkways, loose ballast and other walking hazards within this area". Claimant was aware of that warriing. Nevertheless, on June 11. 1995, Claimant stepped on a rail anchor which aTinarentlv ryas in
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D. R Owens
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plain view or should have been seen. Substantial evidence therefore supports this portion of the allegations against Claimant.
Claimant was also found by the Carrier to be accident prone. The evidence supporting that assertion came from Assistant Division Superintendent J. B. Cato's testimony that Claimant had sustained nine incidents of injuries (including the injury in this case) from November, 1982 through June, 1995. Cato then compared the records of five employees immediately junior to Claimant and five employees immediately senior to Claimant and those 10 employees had an average of 1.6 injuries. Cato made further comparisons concerning safety contacts and salaries and found Claimant had similar factors when compared to those employees. Cato concluded (Tr. 91) "[c]omparing his record to those of his peers. I definitely see that Mr. Owens is an injury prone individual."
With respect to the eight other incidents of injury relied upon by the Carrier, it does not appear from this record that there were invesLigations and discipline or that Clainant was determined to be re-
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On this property, the issue of accident proneness as a basis for discipline is not a new issue for the neutral member of this Board. In PLB 5416, Award 21 the abilir,~ of this Carrier to rely upon accident proneness as a basis for discipline where the incidents of injury which were not determined to be the employee's fault was discussed at length. Based upon a review of prior awards involving the Carrier, the relevant portion of PLB 5416, Afl:ai d 21 stated as follows (fd. at 3-5)
One of the most important functions of the arbitration process is to provide stability to collective bargaining relationships. Where an issue has been decided in the parties' relator-ship, it is not the function of a Board in a subsequent case to redeterfnine the matter de noco each time the issue is raised. With respect to prior awards, it is well-accepted that when an issue has been decided our function is only to determine if the prior award is palpably erroneous.
From what is before us, then, the issue of whether the Carrier needs to demonstrate responsibility by the employee for the cited instances of injures to support a disciplinary action based upon allegations that the employee is accident prone is not a question of first impression. The Carrier cites us to one award (which in turf cites another) favoring its position that fault need not be shown and the Organization C4-Ls us to five awards with language stating t-he opposite.
Therefore, it is fair to conclude that although at one time between the parties fault may have been irrelevant in accident prone cases. since 1992 Boards reviewing these kinds of cases have required the Carrier to demonstrate that the employee had been found to be in some way responsible for the prior injuries. Indeed. PLB 5441. Au;ard 1 specifically relied upon that holding in PLB 4833, Au;ard 32 ("Without such a finding under the standard set forth [in PLB 4833. Award 321, the Carrier has not met its burden of proof to show that a particular individual is injury prone.").
We do not find those most recent awards between the parties relied upon by the Organization to be palpably in error. How we would decide the question on a de nouo basis is therefore irrelevant. For stability purposes, between these parties and because the most recent awards state that in order to find that an employee is accident prone, there must be a demonstration that the employee was determined to be responsible for the cited instances, we are therefore required to defer to that line of authority. On this property, in order :or the Carrier to discipline an employee for being accident prone, the Ca=er must demonstrate that responsibility :vas assessed fcr
the cited injuries against the employee for the cited incidents.
That logic must apply to this case as well. There is no evidence that the eight other incidents resulting in Claimant's prior injuries were his fault. There were no investigations, discipline assessed or other findinas that Claimant caused or contributed to those other eight injuries. Based upon PLB 5416. Award 21, substantial evidence therefore does not support the Carrier's determination that discipline was also appropriate because Claimant was accident prone.
The Carrier's cited authortv in its submission is not persuasive to change the result. Ffrst Division Award 20438; PL3 0=?2, Award 2: and PLB 4724, Au;ard 4 did not involve this Carrier.
The remaining question concerns the remedy.
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The Carrier dismissed Claimant for two reasons: (1) failing to protect himself from injury and (2) for being accident prone. As discussed, substantial evidence supports the first ground but not the second. The amount of discipline chosen by the Carrier (i.e., dismissal) therefore cannot stand. Under the circumstances, this Board is of the opinion that a 30 day suspension will serve to get the message through to Claimant that in the future he must protect himself from injury as required by the Carrier's rules.
Our desire is that Claimant be made whole for lost wages and benefits less the consequences of a 30 day suspension. Ordinarily, we would simply require Claimant's reinstatement and would further require that Claimant be made whole for lost wages and benefits less the consequences of the 30 day suspension. However, this Board is uncertain of Claimant's condition and the status of his employrnent relationship.
The record shows that Claimant had surgery and, at least as of the date of the investigation. was still under a doctor's care. We are also advised that Claimant has instituted litigation against the Carer. We do not know, however, whet=err
_- ~ - PLB 5392, Award 18