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                            Carrier's File No.1141533


rv·
                            Organization's File No. 98061

                            NM3 Code 106

                            Claimant Engineer J. W. Shook


        PARTIES TO THE DISPUTE:


- BROTHERHOOD OF LOCOMOTIVE ENGINEERS

 .. AND

        UNION PACIFIC RAILROAD CCM=: N:''


        Statement of Claim:


_ Appeal of the level 2 C_scipline assessed to Engineer J. W.
            Shook and request the ex=1;ngement of discipline assessed and

            pay for any and all t__-.:e lost with all seniority and

            vacation rights restored unimpaired. Action taken as a

            result of formal hear_nc held August 13, 1998.


        Findings:


        Upon the entire record a_-_d all the evidence, this Board finds the parties herein t,. ..e Carrier and Employees within the meaning of the Railway Labor zct, as amended, and that this Board

'- has jurisdiction of the par=ies and over the dispute involved
        herein.


By certified letter cat=d ?.-,gust 7, 1998, the Claimant was offered a Waiver of Hearing provided he accept a .Level 2 Discipline for allegedly perfc-ling his duties in an unsafe manner which caused him to sustain a personal injury. If he chose not to sign the Waiver c` Hearing, the same letter advised him to report for a formal I-vestigation to be held at the Union Pacific Railroad DTO's conference room, on Thursday, August 13, 1998. The purpose of the hearing was to determine whether his injury was the result of his working in an unsafe manner in L
        PLB 6155 - 50

violation of cited Rules 70.1, 1.3.1, 1.1 and 1.1.2, in addition to 1.3.1, Item 10 Rule Supplements and Amendments, Page 22 of the UPRR Revised System Special Instructions. The cited rules read as follows:

      Rule 70.1 Safety Responsibilities


      Employees are responsible for their personal safety and are accountable for their behavior as a condition of employment. Employees must take every precaution to prevent injury to themselves, other employees, and the public. Employees must report any dangerou_ condition or unsafe practice.


      Employees m,--st be aware of and work within the limits of their physical capa=-l-t-es and not use excessive force to accomplish tasks. Good judgement is required in fulfilling job respons-dilities safely.


      Past oract-c=s that zo not conform to the rules are unaccewtable.


      Rule 1.1 Safety


      Safety is t:-e most _-acrt_^t element in performing duties. Obeying the rules is essential to job safety and continued employment.


      Rule 1.1.2 Alert and Att=ntive


      Employees must be careful to prevent injuring themselves or others. Thev must be a_=rt and attentive when performing their duties and plan t`.e_r work to avoid injury.


      Rule 1.3.1


      Safety Rules. Employees must have a copy of, be familiar with, and comply with all safety rules issued in a separate book or in another form.


      System Soecial Instruct-ons Effective 0001 Monday, June 1, 1998. Item 10


      When there is a conflict, Subdivision and Special Instructions takes precedence aver Division and System


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                                                      .

            Special Instructions; Division Special Instructions takes precedence over System Special Instructions when they are in conflict.


        The Carrier reviewed the evidence and concluded that the Claimant was guilty of t^e -cited rules. He was assessed a Level 2 Discipline under the Upgrade Policy. The discipline was "Up to a one day or one round t-iz alternative assignment with pay to develop a Corrective Ac=is?1 an to Modify behavior. Pay will be in accordance with Emplovee _n-rolvement Guidelines."


        The Organization a=ea=ed the d'_scipline through the appropriate channels and i= =s properly before this Board. for Review.


        On the day the Claimant injured his knee he was serving as _ the Engineer on Train O?iG?.--.3, on the Portland Subdivision No. 434. At the end of his sif=, he was tying down the handbrake on Unit SP9774. He subsecuen=1_-r claimed that as he was dismounting his unit, he hit his knee on a protruding bolt which was on a r plate covering the chains cf the handbrake. The injury occurred around 8:30 a.m. The Clai-ant reported the injury and was taken to the hospital. He was given some oain medication and subjected


h
 -- to a urine test, which was negative. -

                          CAPR_ER'S POSITION


- The Carrier argues the Claimant could have avoided injury if
 - he had been more attentive and alert. They contend the mechanic
        who inspected the unit after the Claimant was injured did not

i; take exception to either t`e length or protrusion of the bolts in
        question. They maintain ~~a~ while the plate and bolts in

        question are within the :va_ sway area they do not protrude into

        the walkway. They say z_-ie mmechanic took no exception to them in

        this regard.


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        The Carrier submits that the Claimant was guilty of the cited rule violations and his penalty was consistent with the Upgrade Policy for the rules violation involved.


                        ORGANIZATION'S POSITION


The Organization asserts the burden of proof in this case
 rests with the Carrier. They insist the Carrier has to provide
 either eye witness testimony or physical evidence as proof that
 the Claimant is guilty of t:^.e rule violations. They maintain the
 Carrier has failed to meet i=s burden. The Organization goes on
 ,., to cite two Board Awards in support of their contention in this
 regard.
 The Organization also objects to the Investigation. They _
 say the Carrier was attempt-n= to obtain information about the
 Claimant's person'- injury to which they are not entitled under
 the Federal Employer's Liabil-ty Act. They accuse the Carrier of
 bringing charges against employees who suffer on-the-job injuries
 in an attempt to lessen their liability. They claim it is the
 Carrier who has not learned the lessons of the safety assurance
 - and compliance process that has been in place over the last year
 and a half.
 They insist the Claimant should be exonerated of all charges
 returned to work and paid for all time lost.
 - DECISION
 L The Board has reviewed t:-is matter carefully. It is true
 that employees have an oblication to appreciate the complexities
 and dangers of the equipment trey work with daily. Normally this
 Board would be inclined to held the employee accountable for not
 being aware of obstructions on an engine which could cause
 injury. However, the Boar conc,rs with the Organization that
 the Carrier had the burden e._` prcof in this case. They had an
 opportunity to present either a more thorough inspection report

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 of the unit involved or direct first hand testimony regarding the
 location of the cover plate and bolts which the Claimant alleged
 were in the walkway of the locomotive. The Carrier failed to
 establish that the bolts were so innocuous, the Claimant had to
 r° have been careless to be injured by their presence. Therefore,
 - the Board does not find adecua'=a proof that the Claimant was
 guilty of the cited rules.
 AWARD

        The claim is sustained.

        r=. The Carrier will comply with =.'.i5 ?ward within thirty (30) days of its receipt.


                                rs ~i.


              Carol J. Zampe_izi, Impartial Neutral


Submitted this 24=' day of Aug~_st, 2,00.

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