PUBLIC LAW BOARD NO. 6302
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
)
Case No. 43
and )
Award No.41
UNION PACIFIC RAILROAD COMPANY
)
Martin H. Malin, Chairman & Neutral Member
D. D. Bartholomay, Employee Member
D. A. Ring, Carrier Member
Hearing Date: April 1, 2003
STATEMENT OF CLAIM:
1. The discipline (Level 5-dismissal) assessed Assistant Foreman J. W. Clark for his
alleged failure to follow instructions by not reporting an accident which occurred
at approximately 2:30 P.M. on October 15, 2001 in Colton, Utah was without just
and sufficient cause, arbitrary, capricious and excessive punnishment (System File
D-02-OID/1310869-D).
2. Assistant Foreman J. W. Clark shall now be reinstated to service with seniority
and all other rights unimpaired and compensated for all wage loss suffered.
FINDINGS:
Public Law Board No. 6302, 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 October 17, 2001, Carrier notified Claimant to attend an investigation on November
7, 2001, concerning his alleged failure to follow instructions by not reporting an accident that
occurred on October 15, 2001. The notice charged alleged violations of Rules 1.1.1, 1.1.3, 1.2.5,
1.6(3), and 1.13 and Safety Rules 71.5.2, 71.6. and 71.8. The hearing was postponed to and held
on November 8, 2001. On November 23, 2001, Carrier notified Claimant that he had been found
guilty of the charge and dismissed from service.
The record reflects that on October 15, 2001, Claimant was cutting fibreglass panels.
Initially, he was not wearing a face shield. The truck driver observed this and advised Claimant
to wear a face shield. Claimant put on a face shield but did not pull it down completely over his
face. Claimant completed his shift, went home, showered, and, around 8 p.m. found that his eyes
were irritated and his vision impaired. Claimant telephoned a friend but did not contact any
Carrier officer. He went to the hospital where he was treated for having fibreglass particles in his
eyes. Claimant notified his supervisor of the injury the following morning. The Manager Track
Maintenance testified that he had previously instructed Claimant to report an injury immediately,
and to call him regardless of the time of day or night.
Carrier thus proved by substantial evidence that Claimant failed to properly wear his face
shield while cutting the fibreglass. This was a very serious violation of an important safety rule
and the violation resulted in the injury to Claimant's eyes. Furthermore, the violation was
aggravated by Claimant's failure to report his injury immediately after he discovered it. The
Organization argues that Claimant should not have to delay getting medical attention to call the
MTM. We agree. However, the record reflects that Claimant was able to telephone a friend
before proceeding to the hospital and there is absolutely no evidence that Claimant could not
telephone the MTM before going to the hospital.
The Organization contends, however, that Claimant was only charged with failing to
report the injury in a timely manner; that he was not charged with safety violations. The notice
did state that the purpose of the investigation was "to develop the facts and place responsibility,
if any, that while working as Assistant Foreman, you allegedly failed to follow instructions by
not reporting an accident . . ." Certainly, the notice would have been drafted more artfully if it
also had specifically mentioned Claimant's alleged failure to properly use the face shield.
However, the notice also cited, among the alleged rule violations, Safety Rule 71.5.2 concerning
eye protection.
At the hearing, Claimant's representative made no objection to the reference to Safety
Rule 71.5.2. Much of the evidence at the hearing concerned Claimant's failure to use the face
shield properly and no objection to any of that evidence was made by Claimant or his
representative. Indeed, Claimant's representative specifically addressed Rule 71.5.2 in his
examination of Claimant, and specifically with respect to the face shield. Thus, it is apparent
from the record that Claimant and the Organization understood that the reference to Rule 71.5.2
in the notice concerned his use, or failure to properly use, the face shield.
As indicated above, Claimant's failure to properly use the face shield was a very serious
safety violation. Claimant's failure to promptly report his injury the night of October 15 was also
a very serious rule violation. It is essential that Carrier be made aware of on-duty injuries as
quickly as possible so that Carrier can take corrective measures to protect the health and safety of
the injured employee and to protect against repetition of the incident in the future. Given the
seriousness of Claimant's transgressions, his relatively short length of service and the absence of
any mitigating factors in the record, we cannot say that the penalty of dismissal was arbitrary,
capricious or excessive.
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?LB 63 0
Awd
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Martin H. Malin, Chairman
D. A. Ring, ( D. B holomay,
Carrier Member Emplo Member
Dated at Chicago, Illinois, September 26, 2003.
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