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. On that day, he was assigned to Extra Gang 44, which was a three-man crew consisting of one other crew member and a Foreman. Their job was to spike switch plates which were out of adjustment. The two crew members were to work in tandem. After the two men had set about three spikes-, the Claimant was preparing to hammer in the fourth. At the time, he was unaware that the other crew member had moved closer. When he raised his spike maul, he hit what he believed to be the visor of the other crew member's hard hat. He looked up to see the crew member place his hand on his forehead right above one eye. The other employee claimed he had been hit on the forehead with the maul. Neither the Claimant or the Foreman saw any visible signs of injury. - q~LWc~
The injured employee did report to work the next day, but asked that he be allowed to take it easy. On Saturday, two days later, the employee called the Foreman of another crew to report 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 three employees 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. A second hearing was scheduled for June 22, 19_95. Despite an attempt by the Carrier--and the organization the injured employee could not be contacted. Therefore, the hearing was closed without further testimony.
Carrier Officer and the Claimant was.suspended for a period of five (5) working days.
The Organization argues that the charge Jetter did not cite specifically and/or precisely the allegations against the Claimant. They further urge that the Claimant has extensive service with. the Carrier and has been a conscientious employee. Finally, they argue that there is no evidence he was performing in an unsafe manner on the day of the accident. They believe he should have been exonerated of all charges.
The Carrier believes there is ample evidence to demonstrate that the Claimant failed to make certain that other employees around him were in the clear of the arc of the spike maul which he was using. Therefore, they believe the penalty issued was appropriate.
Regardless, the Claimant does have a responsibility of assuring an area is clear before he swings a maul or uses any type of equipment. His failure to do so in this case, may have caused a serious injury. In this regard, he did fail to comply with the intent of the Carrier's Safety Rules. The only question remaining is whether the penalty issued the Claimant was reasonable in light of all factors.
The Claimant has worked for the Carrier for nearly thirty years. According to his employment history he has an unblemished work record, with the exception of some injuries suffered during his tenure. The most recent being in 1984 when he received some cuts and bruises when a hose came off the tamping gun he was using and hit him in the face. His most serious injuries involved a fractured knee and a broken elbow. While his injuries may indicate and occasional lapse in concentration, they are not extrordinary in number or result.when you consider a career which exceeds 29 years of service. For these reasons, the Board believes thepenalty issued to the Claimant was excessive. The five (5) day suspension should be reduced to a two (2) day suspension.