Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9513
SECOND DIVISION Docket No.
9167
2 -B&o-CM-'
83
The Second Division consisted of the regular members and in
addition Referee Josef P. Sirefman when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
No. 1. That Carrier violated the terms of the controlling Agreement, specifically
Rule 32, when they improperly subjected Carman W. E. Still, to an
investigation--held on the date of October 30,
1979
at Dayton, Ohio,
at 10:00 A.M. at General Mechanical Foreman's office, that the charge
against Carman Still, as alleged, by Carrier, was unjustifiable,
unrealistic, unsubstantiated, uncalled for, unfounded, unreasonable,
and unfair and partial.
No. 2. That Carrier is guilty of impropriety with regard to the handling of
this claim on the property, subsequently in violation of Article V,
TIME LIMIT ON CLAIMS OR GRIEVANCES, effective January 1,
1955.
No.
3.
That Carrier be ordered to remove the "entry" on Carman Still's
"service record", such being the discipline administered by the Carrier,
account Carman Still allegedly being found at fault for failure to
comply with Rule 101 of the Book of Safety Rules dated October 1,
1968,
in connection with alleged injury of June
18, 1979.
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 in this case was employed as a Carman at Carrier's Dayton, Ohio
facilities. While on duty on June
18, 1979,
Claimant experienced severe pain in
his lower abdominal area while closing a freight car door. Claimant made no
report of this incident to anyone. Later on June
30, 1979,
he experienced a
similar pain in the same area and, without notifying Carrier, visited a local
hospital for treatment. He allegedly was examined and released with no diagnosis.
Subsequently, on July
3, 1979,
Claimant for a third time experienced pain and
swelling of the lower abdominal area and again visited the hospital where he
was this time diagnosed as having a double hernia. It was not until July 5,
1979
that Claimant, for the first time notified Carrier that he had sustained an
injury on June
18, 1979.
Form 1
Page 2
Award No. 9513
Docket No.
9167
2-B&O-CM-'83
An investigatory hearing was scheduled for October
16, 1979
(postponed to
October 30,
1979
at request of the Employe Representative) and an entry on
Claimant's service record was administered as discipline by letter dated November
19, 1979.
Both Petitioner and Carrier contend that the other is guilty of procedural
violations in their respective handling of this dispute. We have reviewed all
of the record and argument and can only conclude that neither party in this
dispute is completely free of blame. The handling of this case will never be used
as a text book example of proper disciplinary procedures. For this reason we
reject the procedural contentions of both parties and will examine this case on
its merits.
Claimant readily admits that he experienced pain while performing his duties
on June 18th. He contends that he did not think he was injured, so he made no
timely report of the incident. When the same type of situation recurred on June
30th, he again did not believe he was injured. It was not until the third episode
occurred on July 3rd that he realized he had, in fact, sustained a hernia on
June 18th and made a report on July 5th.
The safety rule in this regard is clear. It requires that action be taken
relative to the injury "before his tour of duty ends, or as soon thereafter as
possible...". This Board is in complete agreement with the Carrier that Safety
Rules of this type are important and merit full and complete attention from the
employes. There is no doubt that prudent and cautious action would demand that an
employe, who felt pain of the type here involved in his lower abdomen resulting
from work effort, report it to his immediate supervisor. This belief is doubly
strengthened by the fact that there were three (3) such episodes of job related
pain before a report was made. Given this fact situation, Carrier has the right
to impose discipline. The assessment of a mark of censure by Carrier is not
arbitrary or capricious.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
BY -2--m.~..il,v.t! .
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 15th day of June, 1983.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division