Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9 g5
SECOND DIVISION Docket No.
~+29
2-UP-MA- ' 83
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
International Association of Machinists and
Parties to Dispute: ~ Aerospace Workers
( Union Pacific Railroad Company
Dispute: Claim of Employes:
1. That under the terms of the current Agreement Machinist B. A. Calcaterra
(hereinafter referred to as Claimant) was improperly dismissed from
service on August
28, 1980.
2.
That, accordingly, the Carrier be ordered to compensate Claimant for
all wage loss from date of dismissal to November
14, 1980,
when he
was restored to service without prejudice to claim for wage loss.
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.
The Claimant, a machinist in the Carrier's Pocatello, Idaho, shops, was, as
a result of an investigation held on July
30, 1980,
removed from service for
failure to perform his duties in a safe manner resulting in injury to his back.
It was also held Claimant failed to follow orders from his doctor. Claimant was
reinstated to service on November
14, 1980,
with the understanding that action
would not prejudice the positions of either party.
On July 22,
1980,
Claimant and another machinist were involved in placing
several diesel parts on a westbound CAH. They backed a pickup to the side of a
diesel locomotive in order to place the cylinder head, liner, and piston in the
compartment room. Claimant knelt on the running board to receive the parts from
the other machinist who was standing in the bed of the pickup truck. In lifting
the cylinder head to the running board, Claimant injured his back. Upon his
return to the shop area, he reported the injury and filled out the required accident
report. On July
23, 1980,
he was examined by his physician, who prescribed
muscle relaxant and bed rest. On July
24, 1980,
at approximately
12:45
P. M., two
Carrier representatives went to Claimant's home and spoke with his wife, who
informed them Claimant was not at home.
Form 1
Page 2
Award No. 9385
Docket No. 9+29
2-UP-M&-'83
The Organization asserts Claimant was improperly dismissed from service in
that he did not perform his work on July 22 in an unsafe manner nor did he fail
to follow his physician's instructions. Carrier believes Claimant was afforded
every opportunity to perform his work safely, which included receiving instructions
on proper lifting and being provided the assistance of another employe.
The testimony of the hearing established that Claimant had received prior
instruction on the proper method. of lifting, which involves using the legs and
arms. Claimant was admittedly in a kneeling position. This Board recognizes
that on July 22,
1980,
alternative methods might have been employed by the
Carrier under the circumstances. Notwithstanding, our function is clearly
prescribed, and we can only decide from the record if there is substantial
evidence to support both charges. In this case, we find the record supports the
charge that Claimant failed to perform his duties in a safe manner. The second
charge, however, requires a contrary finding. There is no evidence that bed
rest requires total confinement. Furthermore, the uncantroverted testimony of
Claimant established he was at the Carrier's dispensary at 1:00 P.M. on
July
24,
1980,
filling out insurance forms. Having reviewed the record in this case, the
Board can find no reliable evidence to support the charge Claimant failed to
follow his doctor's instructions. Accordingly, the discipline of the Claimant
is reduced to a thirty day suspension. Claimant is to be compensated for the time
lost exceeding the suspension, less all wages received by him from other sources.
A W A R D
Claim sustained in part, as set forth in, findings.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
jdVosemarie Brasch - Administi-ative Assistant
Dated at Chicago, Illinois, this 2nd day of February,
1983.