r. -
BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1040
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
SOO LINE RAILROAD COMPANY
Case No. 27
STATEMENT OF CLAIM:
Appeal of Claimant Thomas K. Kubera's suspension from Carrier's
service.
FINDINGS:
On June 20, 1995, the Claimant was notified that a formal investigation was being
scheduled to determine the Claimant's responsibility, if any, in a crossing accident that
occurred on June 15, 1995, in Rockford, Illinois while the Claimant was operating a burro
crane. On June 21, 1995, the Claimant was notified that he was being additionally
charged with a violation of General Code of Operating Rule 1.5, Safety Instruction
General Rule G and Company Policy resulting from a positive ZJHR test result. Claimant
was subsequently placed on medical leave while undergoing rehabilitation.
A formal investigation was conducted on September 6, 1995, and it was
determined that the Claimant was guilty as charged. Consequently, the Claimant was
assessed a 20 working day deferred suspension, with a one-year probationary period.
The Claimant filed his appeal, challenging the Carrier's decision
The parties being unable to resolve the issue, this matter comes before this Board.
" r u~Io-a~j
This Board has reviewed the evidence and testimony in this case and we find that
the Carrier has failed to meet its burden of proof that the Claimant was in violation of any
Carrier rules which led to the accident between the burro crane that he was operating and
a motor vehicle. The testimonial record reveals that the Claimant and his co-worker were
operating the crane within the regulations and in accordance with all of the safety rules.
The Carrier has not shown that any of the rules or safety procedures were violated by the
Claimant. There is no question that an accident occurred. However, the evidence reveals
that the motor vehicle was being driven by a very young driver who did not have his
license with him, who had music blaring out of his radio, and who attempted to leave the
scene of the accident after it had occurred. It should also be noted that there was very
little damage or no damage to the Carrier equipment and to the vehicle.
In order for the Carrier to impose discipline, it must show with a preponderance of
the evidence that the Claimant was in violation of the rules or procedures which lead to
the accident. In this case, the Carrier has failed to meet that burden.
This Board has stated on numerous occasions that the simple.fact that an accident
occurs is not enough of a basis to impose discipline. In order to justify the imposition of
discipline, the Carrier must come forwaXd with sufficient evidence that the Claimant was
in violation of the Rules or procedures and that those violations led to the accident.
Consequently, with respect to the part of the claim dealing with the imposition of the 20working day deferred suspension and the one year probationary period, this Board must
2
v 1
Duo-a-~
sustain the claim. There was insufficient evidence to prove that the Claimant was guilty
of any wrongdoing.
Although it is very limited, the record seems to indicate that the Claimant was
additionally charged with a violation of Rule G when he was tested after the accident and
came up with a positive UHR result. He was subsequently placed on medical leave while
undergoing rehabilitation. With respect to that element of the case, if it was part of the
claim, this Board does not sustain the claim. The Claimant was involved in an accident
and the Carrier had every right to request a test. If the Claimant came up positive, then
the Carrier had a right, under its rules, to place him on medical leave while undergoing
rehabilitation.
AWARD
Claim sustained in part. The 20-working day deferred suspension and the oneyear probationary period shall be removed from the Claimant's record. Any action taken
for the Rule G violation is a separate matter and the Carrier was within its rights in that
regard.
TER R. S ,
Neutral Me
Carrier Member Organization Member
DATED: DATED: