PUBLIC LAW BOARD NO. 5564
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
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Case No. 16
and )
Award No. 1 I
NORTHEAST ILLINOIS REGIONAL COMMUTER
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RAILROAD CORPORATION
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Martin H. Malin, Chairman & Neutral Member
R. C. Robinson, Employee Member
J. P. Finn, Carrier Member
Hearing Date: December 13, 2002
STATEMENT OF CLAIM:
Claim on behalf of Metra employee Benjamin Contreras for the removal of censure and
three (3) day deferred suspension as a result of Carrier's arbitrary, capricious, disparate and
excessive discipline in assessing Claimant a three (3) day deferred suspension under the date of
September 11, 2000.
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 July 5, 2000, an equipment mechanic was standing on a rail, repairing a tie adzer and
the rail was moved with a speedswing, pinning the mechanics's foot. The mechanic suffered an
injury to his foot and ankle.
On July 14, 2000, Carrier notified Claimant, the equipment mechanic and seven other
employees to appear for a formal investigation on July 21, 2000, in connection with their alleged
involvement in the equipment mechanic's injury. The notice charged Claimant and the other
employees with violating Employee Conduct Rules II, Paragraph #1, L and N, Paragraph 3,
Items 1 and 2; and and L Safety Rules and General Procedures 1.1, 1.1.2, 2.6, 2.8, 100.4, 1005.
108.1.4, 142.2.2, 142.3, 142.2.4, 142.3.1 and 142.3.2. The hearing was postponed to and held on
August 23, 2000. On September 11, 2000, Carrier notified Claimant that he had been found
guilty of the rule violations charged by failing to make sure everyone was in the clear before
authorizing the pulling of the rail and assessed a three day deferred suspension.
The Board has considered the record carefully. We find that substantial evidence
supports the finding on the property that Claimant failed to make sure that all employees were
clear before he authorized the pulling of the rail.
The record reflects that Claimant was working as an assistant foreman on the day in
question and that he authorized the pulling of the rail. At the time he gave the authorization, the
equipment mechanic was still standing on the rail. The injured equipment mechanic testified that
he received no warning before the rail was moved. Another equipment mechanic who was
present testified that he received word over his radio that the rail was being moved while the rail
was already moving. The supervisor pushed this other equipment mechanic out of harm's way.
The supervisor testified that he observed Claimant walking toward the adzer warning about the
rail after the rail had started moving.
The Organization contends that the supervisor was responsible for the injury because he
gave the equipment mechanic instructions that placed the mechanic in harm's way and failed to
conduct a job briefing. The record, however, does not support the Organization's position. On
the contrary, the record reflects that the equipment mechanic was already repairing the tie adzer
when the supervisor walked by. The supervisor merely suggested that the tie adzer's RPM was
too low and that the mechanic adjust the machine's speed. We find nothing improper in the
supervisor's actions.
Accordingly, we conclude that Carrier proved Claimant's responsibility for the accident
by substantial evidence. We further find that the penalty of a three day deferred suspension for
violations of safety rules was in accord with Carrier's progressive discipline policy and was not
arbitrary, capricious or excessive. Therefore, the claim must be denied.
AWARD
Claim denied.
9J Finn,
ier Member
Martin H. Malin, Chairman
Dated at Chicago, Illinois, April 14, 2003
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R.C. abinson
Employee Member