PUBLIC LAW BOARD NO. 6302
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
Case No. 57
and )
Award No. 57
UNION PACIFIC RAILROAD COMPANY )
Martin H. Malin, Chairman & Neutral Member
D. D. Bartholomay, Employee Member
D. A. Ring, Carrier Member
Hearing Date: March 22, 2004
STATEMENT OF CLAIM:
1. The Level 2 assessed Trackman T. J. Castorena for his alleged falsification of an
injury report, falsely reporting your actions which led to the injury and failure to
follow doctor's instructions on March 27, 2003 was without just and sufficient
cause, in violation of the Agreement, and based on unproven and disproven
charges (System File J-0348-62/1367633).
2. As a consequence of the violations referred to in Part (1) above, Trackman T. J.
Castorena shall now be reinstated to service with seniority and all other rights
unimpaired, compensated for all wage loss suffered commencing March 31, 2003
and continuing until he is reinstated to service and have his record cleared of the
Level 2 discipline.
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 April 2, 2003, Carrier notified Claimant to appear for an investigation on April 10,
2003. The notice charged that "while working as a Trackman, you allegedly falsified an injury
report on March 27, 2003 near MP 529.0, Huntington Subdivision, when you falsely reported
your actions which led to you sustaining a personal injury. Also you allegedly endangered the
safety of yourself when after receiving doctor's instructions that prohibited heavy lifting, bending
or stooping, you failed to follow those instructions." The notice continued, "Your alleged actions
indicate a possible violation of Union Pacific Rules 1.6, Conduct subpart 4 Dishonest, effective
April 2, 2000, Safety Rules 70.1 Safety Responsibilities, 75.1.1 Steps to Safe Lifting subpart 2,
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80.1 Avoiding Slips, Trips and Falls, and 80.2 Precautions Against Slips, Trips and Falls,
effective October 25, 1998, Operating Rules 1.1 Safety, 1.1.1 Maintaining a Safe Course, and
1.1.2 Alert and Attentive, effective April 2, 2000." Claimant was removed from service pending
investigation on March 31, 2003.
The hearing was held as scheduled. On April 25, 2003, Claimant was notified that he had
been found guilty of violating Rules 70.1 Safety Responsibilities, 75.1.1 Steps to Safe Lifting,
80.1 Avoiding Slips, Trips and Falls, and 80.2 Precautions Against Slips, Trips and Falls, and
assessed discipline at UPGRADE Level 2, one day of alternative assignment with pay to develop
a Corrective Action Plan. Claimant was reinstated to service effective April 24. 2003.
The record reflects that three different matters were inquired into during the investigation:
whether Claimant's description of the incident that led to his on-duty injury was false, whether
Claimant engaged in heavy lifting when setting up his camper despite doctor's instructions to
refrain from doing so, and whether Claimant failed to work safely resulting in his injury.
Claimant was exonerated of the first two matters and found guilty of the third. The notice clearly
advised Claimant of when and how he was alleged to have falsified the injury report and when
and how he was alleged to have failed to follow doctor's instructions. However, the notice
contained not a single work concerning when, where or how he was alleged to have worked
unsafely, the charge on which he was found guilty. The notice must state the alleged offense
with sufficient particularity to enable Claimant to prepare a defense. With respect to the matter
for which Claimant was found guilty, the notice failed to provide any information that would
have enabled Claimant to prepare a defense. Accordingly, we find that the discipline may not
stand.
The discipline must be set aside for a second reason. Carrier failed to prove Claimant's
guilt by substantial evidence. The record reflects that Claimant was injured while using a plate
hook to remove tie plates. Due to weather conditions, the tops of the cross ties were very
slippery. The record is clear that Claimant was aware of the slippery conditions. Nevertheless,
while performing his duties, Claimant stepped on a slippery spot and he fell and injured himself.
There is absolutely no evidence in the record as to what Claimant could have done (short of
refusing to work under those conditions) that would have prevented the accident. There is no
evidence that Claimant was not working safely or that he ignored the slippery conditions of
which he was aware. The record only establishes that Claimant fell and injured himself, but the
fact of an accident alone does not establish culpability for the accident.
There remains the question of remedy. Claimant's record must be cleared of the Level 2
discipline. Claimant was withheld from service pending investigation and reinstated to service
effective April 24, 2003. Claimant's entitlement to compensation for time held out of service
depends on whether he was medically capable of performing service during the period that
period. The record does not clearly indicate what Claimant's medical condition was during the
period he was withheld from service. Therefore, we will remand this matter to the parties to
determine whether Claimant was medically capable of performing service during the period he
was withheld from service.
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AWARD
Claim sustained in accordance with the Findings.
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
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Mar-tin H. Malin, Chairman
D. A. Ring, D. . rtholomay,
Carrier Member Emplo Member
Dated at Chicago, Illinois, July 23, 2004
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