OPINION OF BOARD: Production Foreman W. R. Thomas ("Claimant") was hired by CSXT in the Track Department of the Engineering Department on November 8, 1999. At all times relevant to this case, he was assigned to Position 61-10-060: Midwest South Service Lane Production Foreman. On February 27, 2007, Force 61-10, under Claimant's supervision, was installing switch ties on the Nashville Terminal Subdivision near the A-Yard Divider Switch. At approximately 15:15 hours, Claimant Thomas physically entered into the "Red Zone" of a working backhoe without communicating his presence to the operator. As the backhoe operator positioned himself to lift a rail
UNION CASE NO. D21706307 COMPANY CASE NO. 12 (07-0712) in order to allow the tie plate to slide back on, Claimant stepped into the Red Zone, picked up a tie plate and used it to "sweep" rock off of the top of the tie. As the Claimant placed the tie plate on the tie, the backhoe operator maneuvered to get in a better position with his bucket against the rail so he could set then set the rail down to reposition his bucket. While he was setting the rail down and just as Claimant Thomas swept the rock off the top of the tie, the rail caught the corner edge of the tie plate, snapping it out of Claimant Thomas's hand and severely pinching the Claimant's left index finger.
Thereafter, by a letter dated March 9, 2007, Claimant Thomas was instructed to attend a formal investigation on March 20, 2007, on the following charges:
After two (2) postponements at the request of the Organization, the hearing was convened on April 11, 2007, with Claimant Thomas and his duly authorized representative in attendance. Prom the evidence and testimony presented, Carrier concluded that the Claimant was culpable as charged and by letter dated May 1, 2007, the Claimant was assessed a thirty day (30) actual suspension.
Vice Chairman A. I-1. Shelton appealed the discipline to the former highest officer of the Carrier designated to handle such matters, Director Labor Relations J. H. Wilson, in a letter dated May 8, 2007:
Following a conference on August 2, 2007, Director Amidon denied the claim by letter of August 15, 2007. After asserting that Carrier had honored all of Claimant Thomas's "due process" rights as provided under Rule 25 (Discipline) of the BMWE/CSXT Agreement and had produced "sufficient evidence" to demonstrate Claimant Thomas was guilty as charged. Director Amidon went on to state:
By letter dated September 27, 2007, Vice Chairman Shelton rejected the Carrier's appellate declination, maintaining that Claimant was deprived of a "fair and impartial hearing" because the Carrier had not complied with his requests for pre-hearing review of Carrier's evidence; and further asserted that "the Operator was to blame for not noticing that Mr. Thomas had placed himself in the position to get his finger pinched". The Carrier responded on November 9, 2007, with numerous Board awards explaining that the right ofdiscovery asserted in this case was not provided under Rule 24[i] (see, for example, Public Law Board No. 6564, Award No. 48, involving the same contract language). Carrier went on to maintain that Claimant Thomas, as the Foreman of the gang, was responsible for notifying Mr. Pewitt that he had entered the Red Gone.
When the Parties were unable to resolve the instant dispute on the property, it was listed before this Board for final and binding determination of the of the unadjusted claim in arbitration.
Review of the record evidence shows that the Carrier met it burden of proving, by a preponderance of probative evidence, that Claimant was guilty of violating CSXT Operating Rules General Rule A, General Regulations GR-2, GR-16, and Operating Rule 727, as well as CSX Safe
Claimant Thomas acknowledged that he had been taught in his training classes that the shovel or the pick or the plate pusher were the proper tools to use for putting the plate on the ties. In this case, he did not do so and, therefore, when Operator Pewitt had to reposition.the bucket to get better purchase, Claimant Thomas suffered the pinched finger injury. It could be said that if Operator Pewitt had not repositioned the bucket the injury might not have occurred, but that begs the question that the Claimant's own safety violations put him in harm's way in the frst place.
Therefore, we find nothing in this record to warrant reversing or modifying the Carrier's assessment of a thirty (30) day actual suspension in this case.
AWARD
Claim denied.
