Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. ~'
SECOND DIVISION Docket No. 9110
2-CL-0-CM-182
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
(
( Chesapeake and Ohio Railway Company
Dispute: Claim of Employes:
1. That, Michael G. Gardner was unjustly dismissed from all service of the
Chesapeake and Ohio Railway Company effective March
14, 1979,
as a
result of an investigation held at Flint, Michigan, at 10:00 A.M.,
Thursday February 22,
1979.
2. That, accordingly the Chesapeake and Ohio Railway Company compensate
Carman Michael G. Gardner his applicable straight time rate of pay
from March
14, 1979,
until restored to service.
3.
That, accordingly Carman Michael G. Gardner be reinstated to service
with seniority rights unimpaired and compensated for wages lost.
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, Mr. Gardner, was notified by letter dated February
9, 1979
to
appear for an investigation on February
15, 1979.
The charge read:
"You are charged with violation of Safety Rule 101, Shop Craft
Rule
42
and that you failed to file Injury Report
CJ-68
as
soon as possible, as required by the rules, and falsely
claiming injury to your hip and shoulder at
10:30
A.M. on
December
30, 1978."
The investigation was postponed at the request of the Organization and held
on February 22,
1979.
The hearing was conducted in accordance with
~_...
ray±u=..I
requirements and past practice. Following that investigation the penalty herein
complained of was assessed.
The record reveals that the problem under consideration started on December
17, 1978.
Claimant while crossing between two cars slipped on a coupler and fell
F orm 1
Page 2
Award No. 7~!: °
Docket No. 9110
2-C&O-CM-'82
to the ground. He filed a
CJ-68
report stating that his nose and left hip had
been injured. Treatment was received for the stated areas of injury and Mr.
Gardner returned to work. On January 22,
1979
he informed his supervisor that
he would not be able to work on January 23 because he was sick. On January 24
he appeared on the property and informed a foreman that he was having trouble with
his right shoulder and thought it was bursitis. Later after deciding not to
wait to see his supervisor who was in a safety meeting claimant went into the
Repair Track Office and filled out a
CJ-68
form. That form alleged that he had
injured his hip, body and shoulder at approximately 10:30 A.M., December 30,
1978.
Mr. Gardner avers that he was asked to fill out the form on January 24 otherwise
he would have relied on the original one filed on December
17.
That self-serving
claim simply does not square with the testimony of his supervisors and the female
clerk who talked to Mr. Gardner. She testified that in addition to filling out
the form, he stated, among other things, that if the Carrier wantdd any more
information it could talk to~his attorney. The credible evidence in the record
clearly reveals that claimant filled out a form on January 24 claiming injury on
December 30,
1978.
Further, the record reveals that claimant was not working on
December 30, at the location where he claimed to have received the injury. If
he in fact had received the injury as claimed the report time was well beyond
the requirements of the Rule. The preponderance of credible testimony further
indicates that claimant did not tell the truth on January 24 when he filled out
the report. The foregoing constitutes violation of the rules as charged. Some
form of corrective action was merited. In assessing penalty the Carrier reviewed.
Mr. Gardner's past performance. It was far from exemplary and included among
other factors a previous discharge for falsely claiming an injury. He was adjudged
guilty by an N.R.A.B., Second Division award but was returned to service without
back pay because under the circumstances dismissal appeared to be excessive penalty.
In view of the foregoing and the entire record we find that the Carrier was
within its legal rights to dismiss Mr. Gardner.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By __ _ _ _ _~'i
osemarie Brasch - Administrative Assistant
Da ed at Chicago, Illinois, this -8th day of April,
1982'.``
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division