Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
SECOND DIVISION Docket No. 9101
2 -EJ&E -CM-' 82
The Second Division consisted of the regular members and in
addition Referee Kay McMurray when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Elgin, Joliet and Eastern Railway Company
Dispute: Claim of Employes:
1. That, as a result of an investigation held on Tuesday, March
18, 1980;,
Temporary Carman Robert J. Kuryga was given a letter of discipline which
was placed permanently in his personal file. Said discipline given to
Mr. Kuryga is unfair, unreasonable, arbitrary, capricious and in
violation of Rule 100 of the Agreement.
2. That the Elgin, Joliet and Eastern Railway Company be ordered to remove
the letter of discipline from the personal file of Mr. Kuryga.
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 Tabor 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, Mr. Kuryga, was notified by letter to appear for an investigation
on March
18, 1980.
The letter outlined the purpose of the hearing:
"To develop all facts and to determine your responsibility,
if any, in connection with your failure to report an
alleged injury that allegedly occurred at
3:30
P.M.,
Friday, March
7, 1980,
but was not reported until
approximately
8:00
A.M., Monday, March 10,
1980,
in
violation of Rules 1 and 2 of the Safety Rules Governing
Maintenance of Equipment Employes."
The investigation was held at scheduled and following that hearing, which
was conducted in accordance with ccnlractual red irernen"S -.r-~.
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penalty herein complained of was assessed.
There is no controversy in the record regarding the facts in this case.
Claimant testified that on March
7,
at approximately
3:30
P.M., an action occurred
which caused him to feel a twinge in his back, which he described as "like a
Form 1
Page 2
Award No. - ^ `"
Docket No. 9101
2-EJ&E-CM-' 82
Charley-horse". He did not report the incident to his supervisor claiming that
he did not feel he was injured and that it would work itself out. Later that
night it got worse and his wife took him to the emergency ward at the Hospital
on Sunday. The incident was reported to the Carrier, by Claimant, on Monday
morning, March 10.
In assessing penalty the Carrier relies on Rules 1 and 2 as outlined in the
charges. They read in pertinent part:
"I. Employees who are injured while on duty must immediately report this
injury to their Supervisor or person in charge...
2.
Foreman or other person in charge must be notified immediately of
any personal injury to an employee on duty
..."
Claimant testified that he was familiar with the safety rules. The importance
of such rules, both to the employee and the Carrier, are so well known and
understood by railroad men that we need not burden this award with an explanation.
The rules require that the employee report any injury. One can readily appreciate
the fact that the application of the rule would be rendered meaningless if each
individual were allowed to determine what injury to report.
The record reveals that Claimant had previously had a back injury which
should have alerted him to a possible problem. It is well understood that this
Board is not. in a position to determine credibility of witnesses. That function is
reserved to the investigatory procedure.
The Organization seeks to attack the hearing officer's judgment in this
regard by introduction of a letter from Claimant's doctor which essentially says
matters of determining injury should be left to physicians.' In general, such a
statement would not provoke dissent. However, the problem before this Board is
not to judge injury but rather to determine if the reporting rule was violated.
In this connection, the doctor simply states that he though Claimant was "honest
in his presentation" that he did not have a great deal of pain initially. The
rule does not require a great deal of pain initially. It requires that all
injuries be reported.
We find no credible evidence in the record to determine that the findings
of the Hearing Board were in error. Consequently, we have no alternative but to
uphold the decision.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
~semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 28th day, of April, 1-9,82.