PUBLIC LAW BOARD NO. 6402
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
Case No. 47
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: May 23, 2005
STATEMENT OF CLAIM:
1. The dismissal of Trackman/Bus Driver Kevin M. Folsom for his alleged violation
of Rules 1.6(1) and (2) and 1.13 when, on February 7, 2004, he demonstrated a
willful and reckless disregard for his safety when he injured his hand while
replacing maul handles was without just and sufficient cause and based on an
unproven charge (System File T04-13/1397758).
2. Trackman/Bus Driver Kevin M. Folsom shall now be reinstated to service with
seniority and all other rights unimpaired and be compensated for all wage loss
suffered.
FINDINGS:
Public Law Board No. 6402, 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 February 12, 2004, Carrier notified Claimant to appear for an investigation on
February 23, 2004. The notice alleged that Claimant demonstrated a willful and reckless
disregard for his safety by failing to follow instructions in the proper replacement of maul
handles. On March 5, 2004, Claimant was notified that he had been found guilty of the charge
and dismissed from service.
The record reflects that on February 7, 2004, Claimant was replacing maul handles when
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he hit the back of his hand with his hammer. The Supervisor transported Claimant to the hospital
where Claimant was treated for a broken hand and released. Thereafter, Claimant reenacted the
accident for the Supervisor.
The reenactment showed that Claimant was using a chisel and was holding it with his
palm facing down. The Supervisor testified that the proper way to change out a maul head was
to keep the palms facing up. According to the Supervisor, had Claimant properly positioned his
hands, he would not have been injured. Furthermore, the Supervisor testified, Claimant should
not have used a chisel but instead should have used a four-pound hammer, hacksaw and a track
punch with a rubber guard on it.
The Organization contends that Claimant was not properly trained on changing out maul
heads. The Supervisor testified that Claimant received the proper training, although the
Supervisor did not personally provide the training. Claimant's testimony, on the other hand, was
much more equivocal:
You know, we went through so much things on there, you know, it's hard to soak up
everything. I don't - - I don't believe they had the - - say anything about there, the chip
protector. But I might be wrong.
After a careful review of the record, we find that Carrier proved the charge by substantial
evidence. However, considering all of the surrounding circumstances, we find that the penalty of
dismissal is excessive. Claimant's actions were grossly negligent but we are unable to say that
they were malevolently willful. Accordingly, we shall order that Claimant be reinstated to
service with seniority unimpaired but without compensation for time held out of service.
AWARD
Claim sustained in accordance with the Findings.
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-PLB 1040
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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
D. A. Ring, D. . rtholomay,
Carrier Member Employee Member
Dated at Chicago, Illinois, June 6, 2005
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