On July 29, 1998 the Brotherhood of Maintenance of Way Employer ("Organization") and the Burlington Northern/Santa Fe ("Carrier's entered into an Agreement establishing a Special Board of Adjustment in accordance with the provisions of the Railway Labor Act. The Agreement was docketed by the National Mediation Board as Special Board of Adjustment No. 1112 (`Board'.
This Agreement contains certain relatively unique provisions concerning the processing of claims and grievances under Section 3 of the Railway Labor Act. The4 Board's jurisdiction was limited to disciplinary disputes involving employees dismissed, suspended, or censured by the Carrier. Moreover, although the Board consists of three members, a Carrier Member, an Organization Member, and a Neutral Referee, awards of the Board only contain the signature of the Referee and they are final and binding in accordance with provisions of Section 3 of the Railway Labor Act.
Employees in the Maintenance of Way craft or class who have been dismissed or suspended from the Carrier's service or who have been censured may choose to appeal their claims to this Board. The employee has a sixty (60) day period from the effective date of the discipline to elect to hand'-- his/her appeal through the usual channels (Schedule Rule 40) or to submit the appeal directly to this Board in anticipation of receiving an expedited decision. An employee who is dismissed, suspended, or censured may elect either option However, upon such election that employee waives any rights to the other appeal procedure.
The Agreement further provides that the Referee, in deciding whether the discipline assessed should be upheld, modified, or set aside, will determine whether there was compliance with Schedule Rule 40; whether substantial evidence was adduced at the investigation to prove the charges made; and, whether the discipline assessed was arbitrary and/or excessive, if it is determined that the Carrier has met its burden of proof in terms of guilt.
In the instant case this Board has carefully reviewed each of the above-captioned documents prior to reaching findings of fact and conclusions.
Claimant was hired by the Carrier in 1995 and has been disciplined one prior occasion when, in 1996, he was issued a formal reprimand for a failure to perform duties. Following notice and investigation the Claimant was issued a bevel S 20 day record suspension with three years probation for violating BNSF Maintenance of Way Safety Rule 5-1.4.? which provides, in relevant part, as follows:
On Jay 7, 2000 ;he Claft-nant was working as a truck driver on a welding gang with another employee. On that day the Claimant and his fellow worker were to take empty gas tanks to be filled and then to transport the filled tanks elsewhere. The record shows that this task was one with which the Claimant was less than familiar. When they arrived at the point at which the tanks where to be filled they first manually removed an empty propane tank, weighing approximately 100 pounds, from their truck. After the tank was filled, and thus weighing approximately 160-180 pounds, the Claimant and the other employee lifted the tank At this point the Claimant was lifting the bottom of the tank while the other employee lifted the top. When the Claimant placed the bottom of the tank on a piece of wood in the truck bed, the other employee lifted the top of the tank. However, the bottom of the tank slipped from the wood and the tank fell to the ground, striking the other employee's foot. The other employee suffered a fracture to his foot. The Claimant was uninjured. SBA No. 1112
The record discloses that the Claimant and the other employee utilized a method on this occasion that did not differ from ordinary practice. However, in doing so, they manually lifted the propane tank despite the fact that a crane was available for their use.
The Organization contends that the Claimant should be absolved of any guilt because he and the other injured employee were working as a team, an effort encouraged by the Carrier, and because the Claimant was performing a task with which he was not totally familiar. Although the Organization's assertions are correct as a matter of fact, we cannot ignore that the safety rule in question is one that does not in our estimation require experience or extensive training involving the lifting of heavy objects without the assistance of a crane, if available. Clearly in the instant case the Claimant and his fellow employee lifted the tank manually although there was a crane available for their use. Yet, they proceeded to load the tank without using the crane and the injury ensued. Under these circumstances we are compelled to conclude that there is substantial evidence of a rule violation.