Upon reviewing the record, as submitted, I find that the Parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this -Special Board of Adjustment is duly constituted. and has, jurisdiction of the Parties and the subject matter; with this arbitrator being sole signatory.
The charges against the Claimant stemmed from an incident which occurred on November 11, 1994 at Buena Park, California. As Foreman, he was in charge of Extra Gang 44, a two-man crew which was spiking switch plates that were outof adjustment. Two members of his crew were working in tandem setting and- hammering in the spikes. At- some point, he turned to see the hard hat of one of the two crew members lying on the ground. Simultaneously, he saw the crew member place his hand on his forehead right above one eye. When he inquired about the situation, he was told the crew member had been hit by the spike maul. He saw no visible signs of injury. He offered to accompany the injured employee tothe doctor, but, the crew member declined. Instead he. merely asked if he could just take it easy.
The Foreman advised his supervisor of the -accident. Later, the supervisor met with the men -at-the depot and interviewed them. - qU-1 -
The supervisor tried to get the employee to a doctor, but the crew member continued to resist and continued to complain about dizziness.
The injured employee did report to work the next day, but asked that he be allowed totake it easy. On Saturday, two days later, the employee called another Foreman to report that he could not sleep and was going to the doctor. He did not show up for work the following Monday.
As a result of the incident, all threeemployees were charged with violating the following Carrier Rules and Regulations:
An initial hearing was held on May 23, 1995, during which two of the three charged employees presented testimony on their own behalf. The hearing was continued to June 22, 1995 due to the absence of the injured employee. To accommodate the injured employee, the hearing was continued until June 22, 1995._ Despite attempts by the Carrier and the Organization the injuredemployee could not be contacted. -Therefore, the hearing was closed on June 22, 1995, without further testimony.
Carrier Officer and the Claimant was suspended for-a period of-five - (5) working days.
The organization argues that the charge letter failed to cite the allegations against the Claimant specifically and precisely. Furthermore, they argue, that while the Claimant may not have a lengthy tenure, he has proven to be a capable and safe employee. This is evidenced by the fact he was promoted to Foreman after only five (5) years of employment. They also contend there is no evidence he functioned in an unsafe manner on the day in question or that he failed to properly supervise his crew. They believe he should be exonerated of all charges. _
The Carrier believes there is ample evidence to demonstrate that the Claimant did not properly advise his crew that they were
not to work in tandem when spiking gages. - For that reason, they believe the penalty issued was appropriate.
The Board believes the Parties were at a disadvantage because the injured employee did not appear at the hearing. As a result, it was difficult to determine whether theinjured employee was more to blame for his own injury than either of the other two-Claimants. Besides, there were no visible marks on the injured employee. This, coupled with the fact he did not go to a doctor for two days, does leave one pondering as to whether he was actually hit and injured by the spike maul.
Regardless, after reviewing the evidence in this matter it is obvious the Claimant failed to enforce the policy of the Carrier. Even though he testified that he did not know it was against the rules to allow employees to work in tandem when spiking gages, he had an obligation, as Foreman, to familiarize himself with such rules. His failure to do so placed two employees in a position where it was possible for this type of accident to occur.
The Claimant's work history of five (5) years is relatively short in the Railroad Industry. The Organization did, however, present a valid point, when they indicated- his promotion to Foreman, along with his exemplary record should provide him with some benefit of a doubt, especially in conjunction with the unanswered questions surrounding the injuries suffered by the injured employee. For these reasons, the Board believes the penalty of a five (5) working day suspension was excessive for a first offense. -The suspension should be reduced to a two (2) day suspension.