Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
842
SECOND DIVISION Docket No. 814
2-CMStP&P-FO-'80
The Second Division consisted of the regular members and in
addition Referee Abraham Weiss when award was rendered.
( System Federation No.
76,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Firemen & Oilers
(
( Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employes:
1. Under the current controlling Agreement, Mr. Ray Rosalez, laborer,
Deer Lodge, Montana, was unfairly dealt with when dismissed from
service of the Chicago, Milwaukee, St. Paul and Pacific Railroad
Company, effective December 22,
1977.
2. That, accordingly, the Chicago, Milwaukee, St. Paul and Pacific Railroad.
Company, be ordered to reinstate Mr. Ray Rosalez to service with
seniority rights unimpaired, payment for all time lost, credit for
fringe benefits, and remove the record of charge from his personal file.
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.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was dismissed for violation of Safety Rules and failure to notify
his foreman immediately of an injury occurring on Wednesday, November
9, 1977,
in that he allegedly falsified Form
171,
Report of Injuries to Persons, filed
November
13, 1977.
As gleaned from the record, Claimant was directed by his foreman on November
9
to clean the drop pit. Claimant testified that while doing the work he
developed back trouble; "my back was out between my shoulders".
On Sunday, November 13, Claimant or his wife called three fellow employees
requesting them to take Claimant's shift that day, giving the reason for such
request that Claimant hurt his back while cleaning the drop pit the previous
Wednesday. None of these employees complied with the request.
Form 1 Award No . 842~
Page 2 Docket No. 8144
2-CMStP&P-FO-'80
On November
13,
Claimant filed Form
171
alleging that he hurt his back while
setting a handbrake. At the investigation, Claimant's foreman disputed Claimant's
explanation of the cause of his injury.
Claimant testified that he was familiar with Carrier's Safety Rule Book and
with Rule No. 1 which provides, in part:
"1. A prompt report must be made to the immediate
supervisor of any injury. Form
171,
Report of Injuries
to Persons, must be filled out immediately, if possible..."
Claimant acknowledged that he did not comply with the requirements of Rule 1.
Although he asserted that his back did not start affecting him until the next
morning, Thursday, he did not report his injury to his foreman. In direct
testimony, he stated that his back slipped on November
9
while cleaning the pit.
Carrier's position is that Claimant falsified Form 171 by alleging an
injury on November 13 when in fact he incurred his back injury on November
9
while working in the drop pit --
a
fact borne out by his request (and reason
for the request) to three other employees to fill in on his assignment on Sunday,
November
13.
We find that Claimant did not report his injury on November
9
to his foreman
as required nor did he submit the Form 171 in connection with the injury incurred
on November
9.
Instead, he filed Form 171 on November
13,
for an injury allegedly
incurred that day, contrary to his testimony that he had injured his back on
November
9.
Claimant violated Safety Rule No. 1 by failing to report his injury of
November
9.
The evidence is persuasive that he did incur an injury on that date.
We can therefore reasonably conclude that he misstated the facts submitted on
Form
171
which he filed on November 13.
Although Claimant did not comply with the rule requiring ti*ely submission
of the Injury Form and he misstated the date of the injury, we believe that these
infractions were not such as to justify the penalty of dismissal. Although we
believe that Carrier was justified in disciplining Claimant, in our view
dismissal was excessive and disproportionate for the offense involved. Claimant
was terminated on December 22,
1977.
He has been held out of service for some
two and one-half years, which we deem a sufficiently severe penalty. The period
of time since his dismissal should serve the purpose of impressing on Claimant
the necessity to comply with the rules and to report truthfully, accurately,
and timely on Carrier's prescribed reporting forms dealing with injuries and
accidents on the job. We are accordingly converting Claimant's dismissal into
a suspension, with no back pay.
Claimant is to be restored to service with all rights unimpaired but without
back pay.
Form 1
Page
3
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
8429
Docket No.
814+
2-CMStP&P-FO-180
A W A R D
Claim sustained to the extent indicated in Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
o
emarie Brasch - Administrative Assistant
Dated Chicago, Illinois, this 6th day of August,
1980.