PUBLIC LAW BOARD NO. 6402
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
)
Case No. 90
and )
Award No. 64
UNION PACIFIC RAILROAD COMPANY
)
Martin H. Malin. Chairman & Neutral Member
D. D. Bartholomay. Employee Member
B. W. Hanquist. Carrier Member
Hearing Date: September 14. 2006
STATEMENT OF CLAIM:
1. The Carrier erred when it unjustly dismissed Mr. J. R. Olivier from service for
being Careless of the Safety of themselves or others when his front hi-rail failed to
raise and also the brakes locked on the opposite end causing the Crane to roll and
cause injury to another employee.
2. As a consequence of the violation referred to in Part (1) above, the Claimant
should be reinstated to service and be compensated for all time loss while out of
service. hotel, meals and mileage while attendim, the investigation.
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 hercin: and, that the parties
to the dispute were gix-en due notice of the hearing thereon and did participate therein.
On February 2.2006, Carrier notified Claimant to report for a formal investigation on
February 14. 2006. The notice alleged that Claimant violated Rule 1.6(1) when on January 21,
2006, he failed to raise one end of the Grove crane he was operating at a time to lock the brake
system on the opposite end and prevent the crane from rolling without brakes. resulting in injury
to another employee and damage to other equipment. The hearing was postponed to and held on
February 22, 2006. On March 15. 2006, Carrier notified Claimant that he had been found guilty
L.06 6402
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of the charge and dismissed from service.
The Organization contends that Claimant was denied a fair and impartial hearing. We are
unable to agree. We have carefully reviewed the voluminous record which covers almost 400
pages. We see no evidence of bias on the part of the hearing officer. Indeed. we note that the
hearing officer sustained a number of Organization objections during the course of the hearing.
The record reveals that on January 21. 2006, Claimant was operating a Grove 360 crane
when he collided with a spiker. There record leaves no question that Claimant raised the front
end up but did not retract the rear end all the way to the top. Consequently, the rear rail wheels
were not fully extended against the rubber wheels. and, as a result he free-wheeled, that is he had
no brakes. This caused the collision.
The Organization introduced evidence of other maintenance issues with the crane, some
of which were repaired, but the record is clear that none of these issues would have caused the
crane to operate without braking, power. Claimant's inability- to stop and his collision with the
spikcr were a direct result of his failure to operate the crane safely and in accordance with
explicit safety instructions that were posted on a sticker in the cab of the crane. Carrier proved
the charge by substantial evidence.
Claimant had thirty-three years of service. He testified. without contradiction, that he had
absolutely no prior discipline. Under these circumstances and without minimizing the
seriousness of Claimants misconduct, we find that the penalty of dismissal was excessive.
Claimant shall be returned to service with seniority unimpaired but without compensation for
time out of service.
AWARD
Claim sustained in accordance with the Findin_s.
BLS c#
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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 sisnatures hereto
z
Martin H. Malin, Chairman
B. W. Hanquist )artholomay.
Carrier Member Empl~_e Member
Dated at Chica_o. Illinois. Februarv 37. 2007