The Second Division consisted of the regular members and in
addition Referee Paul C. Dugan when award was rendered.
SYSTEM FEDERATION NO. 22, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Electrical Workers)
EMPLOYES' STATEMENT OF FACTS: Systems Communication Gang No. 12 Groundman Virgil D. Wayman, hereinafter referred to as claimant, was regularly employed by the St. Louis-San Francisco Railway Company, hereinafter referred to as carrier, and regularly assigned as Groundman to Systems Communication Gang No. 12 of the carrier Communications Department.
The system communication gangs of the carrier are used for reconstruction of the communication pole lines along the right of way over the system, the pole lines being owned by the Western Union telegraph company. Under contract with the carrier, the maintenance of the pole lines is performed by railroad personnel, with Western Union furnishing the material, and, in this instant case, also a Foreman.
On or about April 10, 1969, at Springdale, Arkansas, on account of carrier having erred in advising the gang employes of the train movement lineup, claimant injured himself by having to move and lift in a hasty manner as circumstances required with one other employe a heavy motor car and also a push car off the track at a crossing to avoid having the motor car and push car hit by a train, said lifting of the motor car constituting a dead lift of up to five hundred pounds and a minimum of three hundred pounds as
Notwithstanding the carrier's position as set forth in the preceding paragraph concerning the justification of carrier's action, claim as presented to your Board requests that the carrier "be ordered to restore Groundman Virgil D. Wayman to the service of the carrier with pay for all time lost, seniority rights unimpaired, and all other contractual rights as afforded other employes such as vacations, insurance and etc." As pointed out in carrier's letter of January 15, 1970, the submitted claim is at variance with that part of Rule 16 of the governing agreement which provides:
On the basis of the whole record and all the evidence, the Board is respectfully requested to find that Carrier's action in discharging the claimant did not violate the Agreement between the parties, and to deny the claim in its entirety.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimant received an alleged injury (hernia) on April 10, 1969 at Springdale, Arkansas, while helping set a push car and motor car off of the main line by hand in order to avoid being struck by the northbound local.
As a result of the investigation Claimant was dismissed from Carrier's service for violation of Rule 725 of the Agreement, failure to report an injury to his foreman.
The Organization is contending that Carrier violated Rule 16 of the Agreement when it failed to give Claimant a fair and impartial investigation; that Carrier did not have Claimant's accuser, Gang Foreman Bruce, present at the hearing for cross-examination; that Carrier ordered the investigation
of Claimant because he did not report the injury to office clerks or fellow employes (the Agreement does not provide that an employe report an injury other than to supervisory personnel); that inasmuch as a foreman would be subject to discipline for failure to report an injury, thus it is understandable that Carrier would be able to solicit a favorable statement from a foreman, particularly after an investigation had been ordered; that Claimant injured himself while lifting a motor car off of the track to avoid being struck by a train; that though the instant pain to Claimant subsided, Claimant reported the injury to his foreman during the noon hour, but that the foreman concluded that the injury was insignificant and saved himself the paper work and trouble of reporting it to higher officials; that it is logical to assume that the injury did occur on April 10, and, being a strain-type of injury, did not show up again until April 13, 1969, while Claimant was lifting a rabbit hutch.
Carrier's position is that Claimant's failure to report the injury not only violated Maintenance of Way & Structures Rule 725, but also Rule 23 of the Agreement, because of his failure to report the alleged on-duty injury either prio_ to or when he was in the office of the General Superintendent Communications and Signals on Tuesday, April 15, 1969, arranging for a leave of absence; that on the basis of the whole record and all the evidence, Carrier's action in dismissing Claimant from its service was justified; that the claim as presented is in variance with Rule 16 of the Agreement in regard to damages asked for the claim.
We are confronted in this dispute with the issue as to whether or not Claimant reported his injury allegedly suffered while on duty for Carrier on April 10, 1969 to Carrier's foreman, G. L. Bruce, as required by Rule 725 which, in part, provides:
The Organization contends that Rules 16, 17 and 23 of the Agreement were violated.
Rule 16 concerns an employe being entitled to a fair and impartial investigation. The Organization's position is that Claimant was not afforded a fair and impartial investigation because of Carrier's failure to produce Foreman Bruce, and that Claimant was deprived of his right to cross-examine Mr. Bruce. Carrier produced and entered into evidence a written statement from Mr. Bruce at the hearing.
A number of decisions of the Third Division, National Railroad Adjustment Board, have held that written statements are admissible in investigations without the writer being present. See Award Nos. 15981 and 16308. As was said in Award No. 16308:
Finding no rule in the Agreement prohibiting the use of a written statement at an investigation hearing, we find the Organization's contention in this regard to be without merit and must therefore be denied.
Concerning the merits, the sole issues to be determined are whether Claimant did violate the terms of Rule 725 as to the giving of notice of injury to his foreman on the date of the alleged injury and whether the penalty of dismissal assessed against Claimant was arbitrary or capricious. The record shows conflicting testimony. Claimant testified that he mentioned his injury to his foreman on the date in question. Claimant was very vague and indefinite in his explanation as to when and where he was when he told Foreman Bruce that he had injured himself, and as to who was present, if anyone, when he mentioned his injury to Mr. Bruce.
Foreman Bruce made a written statement in which he stated that Claimant did not say anything to him about a personal injury on April 10, 1969. Claimant offered no corroborating evidence supporting his own testimony and offered no evidence that refutes the written statement of Foreman Bruce. Thus, we feel that Carrier met its burden of proving by substantial evidence that Claimant violated the terms of Rule 725. Claimant attempts to show that the strain injury did not show up until several days after the incident in question. However, employe Jack O. Evans, secretary to the General Superintendent of Communications & Signals, testified that Claimant told him that he had first noticed the trouble on Sunday as he was helping his daughter lift a rabbit hutch, and he felt pain in the lower part of his stomach.
Concerning the discipline assessed, we find that Claimant has a bad record of absenteeism, and, therefore, we cannot conclude that Carrier's action in terminating Claimant's employment with Carrier was arbitrary or capricious, and we must thus deny the claim.
The majority in their findings prove that they did not understand the issue before them, as they ruled on the issue as to whether a written statement is admissible in an investigation or not. The following appears on page 3 of the Award:
Therefore, the Award is erroneous, as the referee should have followed his own principles as outlined in Award No. 6225, which reads, in part: