Form 1 NATIOTAL RAILROAD ADJUST,', vs BOARD Award ,o. 7539
SECOND DIVISION Docket No. 7458
2-SFr-1,1A- ' 78

The Second Division consisted of the regular members and in addition Referee Arthur T. Van Wart when award was rendered.

. ( International Association of Machinists and

( Aerospace Workers

Parties t;n hisrnihe·

( Southern Pacific Transportation Company

Dispute: Claim of EmDloyes:

1. That under the current Agreement Traveling Motor Car Mechanic P. R. Diaz (hereinafter referred to as Claimant) was improperly dismissed from the service of the Carrier on April 2, 1976.

2. That, accordingly the Carrier be ordered to restore Claimant to service with seniority and service rights unimpaired and with compensation for all wage loss from date of dismissal to date of restoration to service.

findi n;s

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.

Parties to said dispute waived right of appearance at hearing; thereon.

C1ainant, a Y_otor Car ?Jechanic, was dsmissed from service, April 2, 1976, following a hearing wherein Carrier successfully established that Claimant had fl asely reported to it, a personal injury sustained on February 27, 1976, in an off-duty, but, on-property, altercation with a friend, as being an -injury which kid occurred while in an on-duty status.

This case differs from those cases wherein an employe feigns personal injury and willfully and fraudently reports sam to Carrier as being an injury which occurred while on duty. Here, several hours after going off duty on Febrnary 27, 1976, C1ain..nt, .oho was still ors the property, vas involved in a brief altercation. As a result he was struck in the face by a friend and felloN employe. Thereafter ties vent ho::=e.. Claimant went to a hospital., near his home, for emergency treatmcut shortly after the

I
Form 1 Award No. 7539
Page 2 Docket TITO. 7458
2-SPT-r.7A-' 78

altercation. When questioned as to how the facial injury occurred, Claimant, thinking that he was avoiding involvement of his friend, and eliminating a problem with the company, because it had occurred on the property, as well as any .possible domestic z.-m-olication, stated that while loading his truck his foot sli,)r?ed on the back of the truck and he hit his face on the tool box: Said hospital's ro»_tine report to the California Department of Industrial Relations ~~as thereafter passed on to Carrier thus giving it notification of an on-job injury and cause for inquiry thereon. Representatives of tt,.e Carrier visited Claimant to talk about another matter as well as this incident. Such representatives were, at that time, well aware of the fact that Claimant had been involved in an off-duty alterca,t-,on on February 26, 1976. Said representatives requested that Claimant fill out an accident report. Claimant advised that he didn't desire to and wished to have the nuatter dronred. ~To;ever the Carrier's representati ves insisted that he- fill out such retort. He did and thus nerri_ etrated the fraud by stating therein that he had been injured on duty.

Claimant's testimony was refreshingly candid. He was forthright. Claimant freely adrnttcd ti:at he had co=i--tied the fraud. The Board was impressed bir Cla-irant's s sincerity and honesty. -It an x;cars that C.""lainant's purpose in misleadin;Ca-rier was not motivated by an intent to dcfr~:a.d Carrier but rather (it was) by an ef'fot to avoid creatin; proble?.zs for a friend and himself. iie s,r_a,s wrong nevertheless. 3Towever, we believe that Claim==ant is contrite and ti-aly sorz~T for what the did. Claimant has an otherwise clear record in his seven years of .service. He has now been out of service fox over two years. Such time has perm tted h7-r:: to learn the valuable lesson that :ronesty i s always the best policy and that had he followed such a policy he would not have been in :his present predic~_::ent.

Accordin r;ly it is concluded that the discinl1 ne has now served its purpose and order t=at Claimant be reinstated to service, t.,-ith all rd.-;!Its unimpaired but vr.thout pay for tine out of service subject to the usual return-to-service pLysical examination, as well as the caveat that if perchance Clai~<<ant does not rece=,nize the seriousness of dishonesty 5_n word and deed, the is re?ninded that any suctl i'uture conduct, if proven, could result in permanent dismissal.

A Z,J A R D

Claim disposed of as per findings.

T?ATIOT_U PAILROA.D PJ)JUSTI.'!'F NT BOARD By Order of Second Division Attest: Executive S c reta=-y

THational ailroad Adjustment Board

,--' p >sc=_n-:c,rie frascl-_- fs(!:Ipni Stratavc Ass.i stant

Dated at Chic~?;~;o, Ill i nois, this l~tii day of May, 1978.