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SBA No. 1112
BNSFBMWE
Case No. 52
Award No. 53
NATIONAL MEDIATION BOARD
SPECIAL BOARD OF ADJUSTMENT
BURLINGTONINORTHERN/SANTA FE
AND
BROTHERHOOD OF MAINTENANCE
OF WAY EMPLOYEES
Claimants:
Bennie Graham
David J. Mahoney
CASE NO. 52
AWARD NO. 53
On February 2, 2001 the Brotherhood of Maintenance of Way Employees
("Organization") and the Burlington Northern/Santa Fe ("Carrier") 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 Railroad Labor Act. The
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 the provisions of Section 3 of the Railroad Labor Act.
Employees in the Maintenance of Way craft or class who have been dismissed or
suspended from the Carrier's service or 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 handle 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.
This Agreement further establishes that within thirty (30) days after a disciplined
employee notifies the Carrier Member of the Board, in writing, of one's desire for
expedited handling of this appeal, the Carrier Member shall arrange to transmit one copy
of the notice of the investigation, the transcript of the investigation, the notice of
discipline and the disciplined employee's service record to the Referee.
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These documents constitute the record of the proceedings and are to be reviewed by the
Referee.
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 substantiate 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 the instant case, this Board has carefully reviewed each of the above-captioned
documents prior to reaching findings of fact and conclusions.
BACKGROUND FACTS
Claimant's, David J. Mahoney, a truck driver, and Bennie Graham Jr., a
trackman, have been charged with their alleged failure to be alert and attentive as well as
the alleged failure to recognize potential hazards in a job briefing resulting in Graham's
back injury when Mahoney was unloading track plates.
An investigation was held on September 12, 2002 at the Burlington Northern
Santa Fe Roadmaster's Office, 1001 Joliet Ironwork Drive, Joliet Illinois to determine the
Claimant's responsibilities.
The record reflects that Claimant Graham was struck in the back with a tie plate
tossed from the grapple truck along Main 1 by its driver, Claimant Mahoney, on August
30, 2002. The track plate weighs between fifteen (15) to eighteen (18) pounds and the
briefing seemed to indicate that physically tossing twenty (20) to thirty (30) plates would
be a safer option than employing mechanical means to unload because of the heavy
traffic in the area at that time.
The Claimant's are charged with the alleged violations of these following rules:
Maintenance of Way Operating Rule 1.1, Safety:
Safety is the most important element in performing duties, obeying
the rules is essential to job safety, and continued employment.
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Case No. 52
Award No. 53
Empowerment.
All employees are empowered to and required to reviews, to violate
any rule within these rules. They must inform the employee in charge
if they believe any rule to be violated. This must be done before the
work begins.
Job Safety Briefing.
Conduct a job safety briefing with the individuals involved before
beginning work, before performing new tasks, when work conditions
change. The job safety briefing must include the type of authority or
protection in effect.
Safety Operating Rule, 1.1, Job Safety Briefing:
Employees must participate in job safety briefing before beginning
the work, when work or job conditions change. The briefing includes
a discussion of the general work plan, existing or potential hazards,
and ways to eliminate or protect against hazards. Outside parties or
contractors involved (in the work or) who are in a work area, must
also be included in the job safety briefing.
It is the Organization's position that the charges assessed by the Claimants lacked
specificity. The Organization contends that the Carrier failed to mention that the plates
needed to be unloaded and that the exclusive method for such unloading at any prior
briefing. Thus, the Organization maintains that there was a lack of notice of a potential
danger involving such a task. In addition, the Organization argues that the Carrier failed
to provide a safe working environment for the Claimants. Lastly, the Organization notes
that Claimant Graham is an excellent, long-term employee with an unblemished record.
Therefore, his appeal should be sustained for all of the aforementioned reasons.
It is the Carrier's position that the Claimant Mahoney violated Safety Operating
Rule 1.1 when he manually unloaded the plates that accidentally hit Claimant Graham in
the back injuring him. Besides, the Carrier points out that it is mandatory that all
employees attend all of the briefings - not just the initial one. Here, the Carrier notes that
working conditions changed necessitating a new plan of action. However, Claimant
Graham was not present for the second briefing, as required. Additionally, the Carrier
argues that the unloading of plates is an act that can be hazardous; and this is the purpose
of the subsequent briefings, in order to alert the Claimants of this potential hazard.
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Award No. 53
Based on all the above, the Carrier requests the Board to deny this claim.
After a careful review of the record in its totality, the Board finds that the
Claimants, Mahoney and Graham, should be suspended for the following reasons.
First, the unloading of plates manually was not the safest method to accomplish
this purpose. Claimant Mahoney, among others at the secondary briefings, made this
unfortunate choice. Due to this decision, he inadvertently hit Claimant Graham in the
back, injuring him. The Board finds that this hazardous act is a negligent act. Thus,
Claimant Mahoney must now accept the consequences of his decision.
Second, the Board concurs with the Carrier, Safety Operating Rule 1.1 requiring
that one "must" be present for all briefings. The record reflects that Claimant Graham
was absent from subsequent briefing, as he was thus unapprised of the potential hazard
that the unloading of the plates manually would present. Therefore, Claimant Graham's
omission to be present for the secondary briefing was also negligent.
Third, it is significant to note that Claimant Graham also admits that manually
throwing tie plates from the track was an unsafe act in his testimony during the
investigation. Based on all of the foregoing, the Board finds that this appeal must be
denied.
AWARD
Claimants, David J. Mahoney and Bennie Graham, shall be
suspended for thirty (30) days for all of the aforementioned
reasons.
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