PUBLIC LAW BOARD NO. 5564
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
Case No. 11
and )
Award No. 10
NORTHEAST ILLINOIS REGIONAL COMMUTER )
RAILROAD CORPORATION )
Martin H. Malin, Chairman & Neutral Member
R. C. Robinson, Employee Member
J. E. Butler, Carrier Member
Hearing Date: November 17, 1997_
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The discipline [five (5) day deferred suspension which
will remain in effect for two (2) years and must be
served as actual suspension if additional discipline is
assessed during those years] imposed upon Work
Equipment Mechanic G. Williams for _his alleged
11violation of Employee Conduct Rule N-2 and L and Metra
Safety Rules A and I was without just and sufficient
cause, on the basis of unproven charges and in
violation of the Agreement (Carrier's File 08-13-249).
2. As a consequence of the violation referred to in Part
(1) above, the Claimant shall be afforded the remedy
provided in Rule 32 (E) of the Agreement.
FINDINGS:
Public Law Board No. 5564, upon the whole record and all the
evidence, finds and holds that Employee and Carrier are employee
and carrier within the meaning of the Railway Labor Act, as
amended; and, that the Board has jurisdiction over the dispute
herein; and, that the-parties to the dispute were given due
notice of the hearing thereon and did participate therein.
On March 13, 1996 Claimant and another employee were
removing bushings from a machine using a rod and a sixteen pound
hammer. Claimant was holding the rod with his hand and the other
employee was hitting it with the hammer. Claimant injured his
finger.
5~69 Y-i.0
On March 21, 1996, Carrier notified Claimant to appear for a
formal investigation on March 28, 1996. The notice charged
Claimant with violating Safety Rules A and I and Employee Conduct
Rules N-2 and L. Following two postponements, the hearing was
held on April 17, 1996. On May 2, 1996, Carrier notified
Claimant that he had been found guilty of the charge and assessed
a five day deferred suspension.
The organization contends that Carrier failed to prove that
Claimant was negligent or otherwise responsible for his injury.
The Organization maintains that Claimant, who had less than one
year of seniority, relied on the judgment of the other employee
who had considerably more seniority and was following the other
employee's instructions. Furthermore, the organization argues,
Claimant had received no safety instructions advising him not to
use his hand to hold the rod.
Carrier contends that it proved claimant's responsibility by
substantial evidence. Carrier contends that Claimant should have
been holding the rod with channel locks or another type of handle
rather than with his hand. Carrier further argues that the
Assistant Supervisor testified that the proper way to hold a rod
when another person is swinging the hammer was discussed in
safety briefings at which Claimant was present.
The Board has considered the record carefully. We find that
substantial evidence supports the finding on the property that
Claimant was responsible for his injury.
There is no question that Claimant was holding the rod with
his hand. There also is no question that if Claimant had been
holding the rod with a tool instead of his hand he would not have
been injured. The only question is whether Claimant should have
realized this and should have held the rod with channel locks or
a similar tool.
The Assistant Supervisor testified that the proper way to
hold a rod when another person is swinging a hammer was covered
in safety briefings prior to the day of the accident. Although
Claimant could not recall the subject coming up at a safety
briefing prior to the accident, Carrier credited the Assistant
Supervisor's testimony and, as an appellate body, we see no
reason to overturn that finding. Moreover, it seems to be a
matter of common sense that one should not put one's hand in
harm's way when someone else is controlling a sixteen pound
hammer.
We recognize that Claimant had less than one year's
seniority and was following the lead of the more senior employee
with whom he was working. However, Claimant's short tenure on
the job does not excuse him from looking out for his own safety
on such a basic matter as not holding a rod with one's hand when
2
someone else is controlling the hammer.
AWARD
Claim denied.
Martin H. Malin, Chairman
E. Butler, R.C.
RV
inson
C rrier Member Employ re Member
Dated at Chicago, Illinois, February 16, 1998.
3