PUBLIC LAW BOARD NO. 5850
Award No.
Case No. 215
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Burlington Northam Santa Fe Railroad (Former
(ATSF Railway Company)
STATEMENT OF CLAIM:
1. That the Carrises decision to issue Claimants Paul B. Anaya, Lead
Welder, and C. J. Geer, Welder, a Level S Thirty (30) Day Record
Suspension and a Three (3) Year Probation Period was unjust
2. That the Carrier now rescind their decision and expunge all
discipline, and transcripts and pay for all wages lost as a result of an
Investigation held 10:00 a.m. December 20, 2002 continuing forward
and/or otherwise made whole, because the Carrier did not introduce
substantial, credible evidence that proved that the Claimant violated
the rules enumerated in their decision, and even if the Claimant
violated the rules enumerated in the decision. suspension from
service Is extreme and harsh discipline under the circumstances.
3. That the Carrier violated the Agreement particularly but not limited
to Rule 13 and Appendix 11, because the Carrier did not introduce
substantial, credible evidence that proved the Claimant violated the
rules enumerated in their decision.
FINDINGS
Upon the whole record and ail the evidence, the Board finds that the parties
herein are carrier and employee within the meaning of the Railway Labor Act, as
amended. Further, the Board is duty constItuLSd by Agreement, has jurisdiction of the
Parties and of the subject matter, and the Partles to this dispute were given due notice of
the hearing thereon.
On October 28, 2002, Claimants were performing boutat welds. In the process of
aligning the rail ends to accomplish the weld, Claimant Anaya was hammering a wedge.
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Case No. 215
A chip broke loose from the wedge when hammered and lodged in Claimant Geees neck
which had to be surgically removed.
After a raenaciment of the incident, both Claimants received a letter dated
November 13, 2002, to appear at an Investigation to determine their responsibility, If any:
'...conceming your alleged use of a defective welding wedge ...."
Following the Investigation, the Carrier assessed both Claimants the discipline set
forth in Item I of the Statement of Claim.
The investigation clearly established that the wedge used had chips missing. It
should have been turned in and a new replacement sought, but this did not happen.
This Board does not believe Claimant Gear, who was injured, committed any
violation. He, in essence, was the helper to Claimant Anaya who has the tide of Lead
Welder. Claimant Anaya was in charge and he was responsible for the use of the
defective wedge. Claimant Geer's record Is to be cleared of all traces of this
investigation, and he Is to be compensated for any time lost as provided in the Schedule
Agreement.
Most of the discipline assessed Claimant Anaya will stand; however, the three
year probationary period will be reduced to one year.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier Is ordered to make the
award effective on or before 30 days following the date the award Is adopted.
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Case No. 215
Robert
L Hicks, Chairman 3 Neutral Member
Rick . Wehrli, Labor Member Thomas M. Rohllng, Carrier Me
Dated:
MGrltn I3, Aoo3