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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9432
SECOND DIVISION Docket No. 9088
2-SPT-EW-'83
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Southern Pacific Transportation Company (Pacific Lines)
Dispute: Claim of Employes:
1. That under the current Agreement, Mechanical Department Electrician
Helper Kleith Hunter was unjustly treated when he was dismissed from
service on July 9, 1978, following
investigation for
alleged violation
of a portion of Rule 801 of the General Rules and Regulations of the
Southern Pacific Transportation Company (Pacific Lines). Said alleged
violation occurring on March 28, 1979.
2. That accordingly, the Southern Pacific Transportation Company (Pacific
Lines) be ordered to:
(a) Restore Electrician Helper Kleith Hunter to service with all
rights unimpaired including service and seniority, loss of ;cages,
vacation, payment of hospital, medical insurance, group disability
insurance, railroad retirement contributions, and loss of wages
to include interest at the rate of six percent
(6%)
per annum.
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, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On April 2, 1979, the Carrier notified Claimant that it was convening an
investigation to determine if he violated Rule 801 when he allegedly filed a
personal injury report even though he had not suffered any on-duty injury. The
investigation, which was originally scheduled for April 18, 1979, was postponed
twice at the Organization's request. At the commencement of the investigation
on June 20, 1979, the Organization requested another postponement. The Carrier's
hearing officer denied the request over the Organization's objection. Claimant
did not appear at the investigation.
The Electrical Supervisor, General Foreman and Assistant Plant Manager gave
the following account of Claimant's activities on March 27 and 2$, 1979. During;
the third shift on March 27, Claimant complained of back pains. Claimant was
Form 1 Award No. 9432
Page 2 Docket No. 9088
2-SPT-EW-183
sent to the hospital for an examination. At no point during this shift did
Claimant suggest that he had suffered any type of job related accident. The
next evening after Claimant reported to his regular third trick assignment,
Claimant suddenly told his supervisor he wanted to complete a personal injury
report. Claimant related (for the first time) that he had accidentally injured
his back during the previous shift (before he went to the hospital). Later,
Claimant purportedly recanted his prior assertion that he had incurred an injury
on March 27. Instead, Claimant's back pain apparently resulted from an injury
he had sustained several months before this incident. Claimant, however, still
insisted on filing a personal injury report showing he had accidentally suffered
an injury because, on the preceding evening, the doctor had told him not to work
for at least two weeks. Claimant also allegedly admitted that he was filing the
personal injury report solely to insure that he would be compensated for the
period he would be unable to work. Though the Assistant Plant Manager warned
Claimant that his actions were not legitimate, Claimant completed and filed a
personal injury report claiming he had incurred an on-duty injury on March 27,
1979.
The Organization initially argues that the Carrier arbitrarily rejected its
request to postpone the hearing on June 20, 1979· According to the Organization_
Claimant's physical disability prevented him from attending the investigation and,
therefore, he was improperly deprived of his right to confront and cross-examine
Carrier witnesses. The Carrier contends it had already granted the two long
postponements and there was no evidence to support a finding that Claimant was
physically unable to appear.
In deciding whether the Carrier's denial of the Organization's request to
postpone the investigation undermines Claimant's due process rights contained in
Rule
38
of the Controlling Agreement, this Board must consider all the surrounding
circumstances on a case by case basis. After carefully examining the record,
we conclude the Carrier's denial did not prejudice Claimant's rights. Claimant
had already been given two opportunities to appear. Though Claimant's doctor
said he was totally disabled until May 21, 1979, there is no evidence demonstrat:Lng
Claimant was incapable of attending `he June 20, 1979 Investigation. In spite
of receiving proper notice, Claimant failed to either contact the Carrier prior
to the June 20, 1979 hearing, or appear at the investigation.
Turning to the merits, we conclude that the Carrier proved that Claimant
committed the charged offense. If Claimant had suffered a personal injury on
March 27, 1979,he should have said so immediately. By completing the personal
injury form the next day, Claimant dishonestly attempted to report an injury which,
in fact, had not occurred.
Due to the seriousness of Claimant's misconduct, we must uphold the
discipline.
A W A R D
Claim denied.
Form 1
Page
3
Attest: Acting Executive Secretary
National Railroad Adjustment Board
Award No. 9432
Docket No. 9088
2-s gr-Ew-'83
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
iarie Brasch - Admin strative Assistant
Dated at Chicago, Illinois, this 30th day of March, 1983.