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UNION PACIFIC RAILROAD COMPANY

(FORMER CHICAGO & NORTH WESTERN TRANSPORATION COMPANY)


e No. 262
Award No. 4A34-V
STATEMENT CLAIM: "Claim of the System Committee of the Brotherhood at:

 1. The Level 2 assessed Laborer .C. Martinez for his alleged failure to watch his footing which cause i to fall d injure his hand on April 2, 2003, was without just and sufficient cause, based on an proven charge and ' violation of the Agreement (System File IJPSw-2050 /1383293 ).

 2. s a consequence of the violations referred to in Part (1) above, Laborer ..
 Martinez `. . . must have his record cleared of the charges and have the discipline
 assessed, as set forth in the Carrier's notice date July , 2003, stricken fro his
 record. Claimant must be compensated at his applicable rate e and be-reimbursed
 for his expenses incurred in co ection with his attending the July 16, 2003,
 hearing. "'

 At the tine of the events leading up to this claim, the Claimant was employed by

 the Carrier as a Laborer, working on Gang 9065.

 y letter dated ay 2, 2003, the Claimant was notified to an-Dear for a formal

 investigation and hearing to develop the facts and deters 'nte Claimant's

 responsibility, if ny, in connection with the Claimant's allege failure to watch his

 footing, thereby tripping an fallin , resulting in an injury to the Claimant's . After
 postponement, the hearing was conducted on July 16, 2003. Bletter dated July 29,' 2003, the Claimant was notified that he had been found ail as charged and that he was being assessed a Level 2 discipTine. The Organization thereafter filed a claim on the Claimant's behalf challenging the Carrier's decision, and the Carrier denied the claim.
process in accordance with the Agreement. The Claimant received adequate notice of his
 investigation., was allowed ample representation, an vas able to present his own
 witnesses, as well s cross-examine all of the Carrier's witnesses who were resent t e
 investigation. The Carrier points out that a Organization's only procedural objection is
 base on the argument that the Carrier allegedly failed to provide adequate notice to the
 General Chairman of the charges against the Claimant. The Carrier insists that this
 argument fails because Rule 8 stipulates only that c General Chairman shall be notified
 of such charges, d this ale does not contain any time limit requirement. The Carrier
 asserts that the assessed discipline cannot a overturned o procedural l grounds alone.
its finding of guilt is unsported y the testimony at the investigation. The Carrier
 emphasizes that the testimony demonstrates that the Claimant tripe when a carelessly
 stepped a large n reasonably obvious hole on the Carrier's property. e is
 points out that its ales highlight the importance of alertness an safety for it
 employees. a Carrier maintains that although it it t n no
circumstances, people are not held responsible for tripping d injuring themselves, t considerations are different when such an incident occurs on railroad prope Carrier argues that its employees are subject to a heightened duty of care, and any accidents on the property are subject to extreme scrutiny.

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The Carrier cites the Claimant's testimony that a had received multiple job briefings on the special need for safety, and that the hole eras at least seven inches deep. The Carrier argues that the hole should have been clearly visible to anyone paying attention to his i1mmediate surroundings. The Carrier points out at the Claimant could have stepped into this hole only if e mere careless and inattentive to his surroundings, thereby violating the Carrier's ales.
 The Carrier then addresses the Organization's argument that the mere fact that accident occurred ®n the rope does not equate to a rule violation. . The Carrier maintains that this argument does not apply to the instant case because the ,circa stances surrounding this accident mere such that it eras entirely preventable had the Claimant exercised normal care while on the property. Under the circumstances, the Carrier asserts that it had no option but to find against the Claimant.
 The Carrier goes on to contend that once bitral panel verifies that substantial
 evidence supports ending of guilty, the panel lacks authority. to overturn t level
 discipline assessed, even if the discipline may see harsh, less there is sufficient

 demonstration that discipline ws arbitrary, capricious, or a useCarrier

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discretion. The Carrier insists that the disciPline t issue was not arbitrary, capricious, an abuse of Carrier discretion. The Carrier emphasizes that the Level 2 discipline

 assessed in the Grievant's case was correct and in accordance with the Carrier's UPGRADE Policy. The Carrier maintains that the Level 2 discipline at issue was merely cautionary and was assessed correctly. There is no evidence of arbitrariness or capriciousness in connection with the assessment of this discipline, and the same amount of discipline in similar situations has been upheld in a number of prior Awards: The Carrier argues that there is no reason for this discipline to a overturned. The Carrier also insists that there is no language isle 48 at provides for award of expenses for g the hearing.

entirety.

 The Organization initially contends that in a high gh percentage of cases involvM'9
 personal injury, the Carrier has reiie ` on the age that if an employee is injoured, -he must

 have violated a safety rule. T o satisfy its burden of proof- in . "s matter, the Carrier must
establish that the Claimant's ` were somehow in violation of the cited ales. The Organization maintains that the Carrier has not one so and cannot o so base on the record" As has been held in prior awards, the instant claim must be sustained because there is no proof that the Claimant was negligent or filed to perform "s duties " a safe ere

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The Organization ultimately contends that the instant claim should be sustained in its entirety.
 The parties being unable to resolve their dispute, this matter came before this Board.
 This Board has reviewed the evidence and testimony in this case, and we find that there is insufficient evidence in the record to support the finding that the Claimant was guilty of violating Carrier rules when he fell and injured his hand on April 21, 2003. The charging officer, r. Reimer, testified' at the hearing that ". . . nobody had seen the actual fall . . ." and the Claimant ". . . evidently tripped in an open crib and fell forward, landing on the right palm of his hand, or paim of his right hand." There is no testimony in this record by any witness that supports the fact that the Claimant violated Carrier rules and thereby caused the accident.
 The record is clear that the Carrier has numerous safety rules which require that employees take precautions when walking, tale short deliberate steps with toes pointed outward, and make sure that their front foot is flat before moving their rear foot.
 The record also reflects that the Carrier has rules that require that employees be careful to prevent injuring themselves or others and that they be alert.
 However, as this Board has stated on numerous cases in the past, the fact that accident occurs does not necessarily prove that a Claim t~ violated the Carrier rules and

 tereby,subjected himself to discipline. The C 'er must come fo d with evidence
 that the rules were violated before it has just cause to issue discipline to a Claimant.
 In this case, the Carrier failed to come forward with sufficient evidence to prove that the Claimant acted in violation of the Carrier rules at the time he was injured on April

 21 , 2003. Consequently, this hoard must sustain the claim.

 The claim is sustained.

 C"IZATION "ER

 DATED: ~, I - °~ - O-S"
PET J ® E~Y
 r a er

 CARRIER EMB

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