Bridge Mechanic A.E. Solomon ("Claimant" or "Solomon") was hired in the CSXT Bridge and Building Subdepartment ("B&B") of the Engineering Department on January 15, 2001. At all times relevant to this issue, the Claimant was assigned to Midwest North Service Lane Bridge Mechanic Position 6PP3-074. On January 19, 2005, Bridge Team 6PP3 was working on the construction of a bridge at milepost OHR 72.8 near Clover Point, KY. At the end of the crews' shift (approximately 1524 hours) the Claimant was standing on a 2x4 strut beam on the northeast corner of the bridge, where the crew was using their Little Giant Crane to collect machinery and tools which
AWARD No.25 NMB CASE No.25 UNION CASE No.D21703206 COMPANY CASE No.12 (06-0392) had been used throughout the workday. Of note, prior to the onset of the collection, the crane operator sounds an alarm to alert any employees that they may be in the "red zone" (the area in which the crane would be operating). As a result of Claimant's precarious position on the strut beam, while trying to leave the restricted red zone, Solomon lost his balance and grabbed the rail with his hands. As the crane progressed, the wheels of the crane ran over the Claimant's hand, causing an injury.
Thereafter, on February 1, 2006, the Claimant was instructed to attend a February 15, 2006 formal investigation regarding his failure to vacate the track on January 19, and the resulting injury. Specifically, the Claimant was charged with: "...failure to perform your assigned duties in a safe and efficient manner and failure to follow instructions in possible violation of the Safety Policy Statement and CSX Safety Rules GS-8, GS-10, and the Code of Federal Regulations part 214.313 (b) and 214. 335 (b) ". The charge letter also informed the Claimant that the January 19 incident was considered a "Serious Offense" under the Engineering Department's Individual Development and Personal Accountability Policy ("IDPAP"). Therefore, under the IDPAP, the Claimant was offered a "Time Out Session" and "Overhead Suspension" in lieu of proceeding to the February 15 formal investigation. However, the Claimant did not accept that waiver offer.
Following two (2) postponements at the Organization's request, the hearing convened on March 22, 2006, with Claimant Solomon and his representative in attendance throughout the proceedings. By letter dated April 10, 2006, the Carrier informed Mr. Solomon that he had been found guilty as charged, and assessed a thirty (30) day actual suspension. The Organization's Vice Cbairman A. Shelton appealed the discipline to Carrier's former highest officer, Director Labor Relations J. Wilson, in a letter dated April 13, 2006. In that correspondence, the Vice Chairman
AWARD No.25 NMB CASE No.25 UNION CASE No.D21703206 COMPANY CASE No.12 (06-0392) opined that: "Mr. Solomon is a diligent and hard working employee, and we feel that Mr. Solomon is being treated very unfairly", Mr. Shelton further stated that any procedural objections expressed at the hearing were thereby incorporated into the appeal.
In an August 9, 2006 declination of the claim, Carrier confirmed the parties' conference. Initially, Carrier noted that all of the Claimant's due process rights as provided under Discipline Rule 25 of the BMWE/CSXT System Agreement, were fully protected. Carrier went on to assert that it had produced "sufficient evidence" which demonstrated that the Claimant was guilty as charged. Specifically, Director Labor Relations Director Wilson stated that: "Mr. Solomon's testimony indicates that he heard the initial sound from Crane Operator Reynolds when he sounded his horn, and he was aware the crane was coming ...he acknowledged that he made `no effort' to move away from the track at that point, but finished the last spot he was working on. When he did make the decision to move off the strut he was standing on, he lost his balance and fell." Given the circumstances, the discipline assessed was "fully justified", according to the Carrier.
In a letter dated October 9, 2006, the Organization rejected Carrier's appellate declination,
The record evidence demonstrates that all of the Claimant's due process rights as provided for under Rule 25 of the Agreement between the Parties were honored throughout the proceedings.. In that connection, the Organization argued that Carrier failed to provide pertinent information prior to the investigation, asserting that Carrier's failure to provide wine violated Rule 24[i] of the Agreement. However, there is no provision in Agreement Rule 24[i], or any other Agreement rule which requires the "right of discovery". Therefore, in that regard we find no violation of the Agreement.
The Organization further argued that in leveling the charges against the Claimant the Carrier relied on a re-enactment conducted by individuals who didn't observe the January 19'' incident; and, the Claimant was not present for the re-enactment. However, the record evidence supports Carrier's contention that the re-enactment was properly conducted. Specifically, Manager Bridges Bridge Supervisor B. Stepp went "immediately" to the site of the accident and conducted a "thorough" job briefing with Claimant's crew. The record further demonstrates that the Claimant was not present for the re-enactment because he was at a local hospital having his injury attended to and was therefore not available to be involved in, or observe, Supervisor Stepps' investigation/re-enactment of the incident.
Turning to the merits of the dispute, the Claimant was charged with violating the Safety Policy Statement and CSX Safety Rules GS-8, GS-10, and the Code of Federal Regulations part(s) 214.313(b) and 214.335(b). Those Rules state, in pertinent part:
Careful review of the record shows that the Carrier demonstrated, with substantial evidence, that Claimant Solomon was guilty of violating CSXT Safeway Rules GS-8 and GS-10, as well as Code of Federal Regulations part 214.313 (b) and 214.335(b) when he failed to stop the work he was doing on January 19, 2006 and move out of the red zone prior to the Little Giant Crane entering the work area. In fact, during his testimony at the investigation the Claimant admitted that he continued to work on the last spot in which he was working, though he heard the horn of the crane as it was approaching. Specifically, the Claimant admitted to the following:
Such admission of guilt by the Claimant clearly satisfied the Carrier's burden of producing substantial evidence to support the charges.. Therefore, the only question remaining before this Board is whether the level of discipline assessed was unreasonable in all of the facts and circumstances. Given the Claimant's admission of wrongdoing, the severity of the safety violation offense and the possible disastrous consequences, the thirty (?0; day actual suspension cannot be considered unduly harsh or inappropriate. Consequently, this claim must be denied.
