PUBLIC LAW BOARD NO. 5564
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
Case No. 7
and )
Award No. 5
NORTHEAST ILLINOIS REGIONAL COMMUTER )
RAILROAD CORPORATION )
Martin H. Malin, Chairman & Neutral Member
R. C. Robinson, Employee Member
J. S. Morse, Carrier Member
Hearing Date: November 17, 1997
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The discipline (entry of censure) imposed upon Bridge
and Building (B&B) Mechanic R. L. Lynch for alleged '
... failure to properly perform your duties as B&B
Mechanic, on Tuesday December 26, 1995, when during
adverse weather conditions you allegedly jumped from
the side of the Calumet Station platform to track
level, resulting in your slipping on a railroad tie and
injuring your leg, has revealed your responsibility for
violation of Metra Safety Rules B-39, B-41, E-179 and
Metra Employee Conduct Rule "N (1)", (Carrier's File
08-13-238)-
2. As a consequence of the violation referred to in Part
(1) above, the Claimant's record shall be cleared of
the entry of censure and of the charges leveled against
him.
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 December 27, 1995, Carrier notified Claimant to report
for an investigation on January 4, 1996. The notice charged
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Claimant with jumping from the side of the platform at Calumet
Station to track level, resulting in his slipping on a railroad
tie, injuring his leg, in violation of Safety Rules B20, B39,
B40. B41. B45. E179, General Rule II, and Employee Conduct Rules
N (1) and L(1). Following two postponements, the hearing was
held on February 23, 1996. On March 4, 1996, Carrier advised
Claimant that he had been found guilty of violating Rules B-39,
B-41, E-179, and N (1), and assessed a letter of reprimand.
On December 26, 1995, Claimant was part of a crew of four
assigned to remove snow from the platform at Calumet Station.
After completing the assigned task, Claimant climbed down from
the platform to the tracks. As he was walking over to get the
salt spreader, Claimant slipped on a railroad tie and injured his
leg.
The parties disagree over whether Carrier proved the
violations by substantial evidence. Much of the inquiry during
the investigation focused on the allegation that Claimant jumped
from the platform to track level. However, it appears that the
charges relating to his alleged jumping off the platform were not
substantiated and Carrier ultimately did not find Claimant in
violation of rules relating to the alleged jump.
Carrier maintains that Claimant should have left the
platform through the gates instead of via the track. In
carrier's view, the accident would not have happened if Claimant
had exited through the turnstile gates. Claimant, however,
testified that the gates would not open and that his only options
were to climb over the turnstiles or descend to track level.
Claimant opined that descending to track level was the safer of
the two alternatives and there was no evidence to the contrary.
Carrier's finding of guilt was premised on the view that the
PAL Center which operates the gates should have been called to
unlock the gates and that documentation from the PAL Center
revealed no such call. However, there was absolutely no evidence
that Claimant was responsible for calling the PAL Center and
getting the gates unlocked. Claimant testified that the first
employee to arrive would call the PAL Center, but that he was not
sure who that was.
Following Claimant's testimony as to the condition of the
gates, the hearing officer recessed to ascertain whether the
other three gang members were available. Following the recess,
the hearing officer reported that two of Claimant's coworkers had
no recollection of the incident and the foreman was unavailable.
Although the Organization had offered a postponement to secure
additional testimony, such as that of the foreman, the hearing
officer chose not to postpone the hearing but, instead, to
conclude the hearing with a PAL operator through whom he admitted
documentation of telephone activity at PAL on the date in
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question.
The record thus contains no evidence concerning who had
responsibility for contacting PAL and having the gates unlocked.
The evidence in the record only proves that Claimant was faced
with the need to choose between climbing over the turnstile
carrying a salt spreader or climbing down to track level and then ,
retrieving the salt spreader. There is no evidence that
Claimant's choice was less safe than climbing over the
turnstiles. Accordingly, on this record, we cannot say that
Carrier proved the violations by substantial evidence.
AWARD
Claim sustained.
ORDER
The Board, having determined that an award favorable to
Claimant be made, hereby orders the Carrier to make the award
effective within thirty (30) days following the date two members
of the Board affix their signatures hereto.
Martin H. Malin, Chairman
_W-97
.S: Morse, R.C. binson
arrier Member Emplo ee Member
Dated at Chicago, Illinois, December 12, 1997.
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