SPECIAL ADJUSTMENT BOARD NO. 947
Claimant - C. D. Naylor
Award No. 85
Case No. 85
PARTIES Brotherhood of Maintenance of Way Employes
TO and
DISPUTE Southern Pacific Transportation Company (Western
Lines)
STATEMENT That the Carrier's decision to suspend.
OF CLAIM Claimant from its service for a period of five
(5) days was excessive, unduly harsh and in
abuse of discretion, and in violation of the
terms and provisions of the current Collective
Bargaining Agreement.
That because of the Carrier's failure to prove
and support the charges by introduction of
substantial bona fide evidence, that Carrier
now be required to compensate Claimant for any
and all loss of earnings suffered, and that
the charges be removed from his record.
FINDINGS
Upon reviewing the record, as submitted, I. find that the
Parties herein are Carrier and Employes 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 Claimant injured his back while lifting ties with a
bar. The only witness to the injury was the Claimant himself.
The incident occurred on June 30, 1988 while a crew was working
1
9q I-BS
near MP 427.6 at Klamath Falls, Oregon. The Claimant filled out
a 2611 on the same date.
By letter dated August 8, 1988, the Claimant was charged
with several rule violations and asked to report to a formal
investigation to be held in Klamath Falls, at 9:00 a.m., on
August 23, 1988. At the request of the Claimant, the hearing
was postponed indefinitely because he was recovering from back
surgery. It was finally held on October 6, 1988, but the
Claimant, for reasons only known to him, did not attend.
The Carrier believed the evidence at the hearing was
sufficient to prove the Claimant had violated Rules A, I, and
607 of the Rules and Regulations of the Maintenance of Way and
Structures; those sections of the rules which read:
Rule A: Safety is of the first importance
in the discharge of duty. Obedience to the
rules is essential to safety and to
remaining in service.
Rule I: Employes must exercise care to
prevent injury to themselves. . .they must
be alert and attentive at all times when
performing their duties and plan their work
to avoid injury.
Rule 607: CONDUCT: Employes must not be:
(1) Careless of the safety of
themselves . . . .
While the Board believes it was unfortunate that the
Claimant did not attend the investigation, it finds no reason to
draw a negative inference. The Carrier has brought the charges
and it is their responsibility to prove their case.
Unfortunately, the Claimant was the only witness to the incident
2
~~f~ gS
which caused the injury. Even the Claimant's Foreman was
working elsewhere when the Claimant claims to have been hurt.
Since the Claimant was examined by a doctor right after the
occurrence, there is nothing to indicate the injury wasn't real.
The witnesses at the hearing were unable to confirm that
the Claimant did not "obey the rules essential to safety". Nor
could anyone testify the Claimant did not exercise care or was
careless. While one could speculate the Claimant did not take
enough care, there are no witnesses to support such a
contention.
Since there is no evidence against the Claimant which
supports the charges brought by the Carrier, the Claim is
upheld.
AWARD
The Claim is sustained. The Carrier is to compensate Claimant
for any and all loss of earnings suffered, and these charges are
to be removed from his record.
Carol J. per' , Neutral
Submitted:
February 16, 1989 3
Denver,
Colorado-