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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10041
SECOND DIVISION Locket No. 10294
2-SOO-CM-184
The Second Division consisted of the regular members and in
addition Referee Jonathan Klein when award was rendered.
( Brotherhood Railway Carmen of the United States and Canada
Parties to Dispute:
( Soo Line Railroad Company
Dispute: Claim of Employes:
1. That under the current agreement the Soo Line Railroad Co. violated
Rules 32 and 40 of the Shops Craft Agreement, when they unjustly
suspended Carman Donald Smith, from service, five (5) work days July
20 thru July 24, 1982, due to investigation held on July 1, 1982, "to
develope (sic) the facts and place responsibility, if any regarding
your failure to report personal injury to yourself at approximately
5:00 A.M. on June 22, 1982. Accident report form 172 not filled out
by you until June 24, 1982 at 8:20 A.M. forty eight hours late."
2. That accordingly.the Soo Line Railroad Co. be ordered to compensate
Carman Donald Smith 5 work days or 40 hours at straight time Carmens
rate of pay and have investigation removed from his record, due to
Soo Line Railroad Co. failure to show Burden of Proof to their charge
and violation of Rule 32 and 40.
Findings:
The Second Division of the Adjustment Board, upon the whole record and a1.1
the evidence finds that:
The carrier or carriers and the employe or employes involved in this dispute
are respectively carrier and employes 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 was a car inspector at Carrier's Shops Yard, Fond du Lac, Wisconsin.
On June 22, 1982 Claimant bumped his back against the side sill of a car while
in performance of his duties. As the result of a formal investigation, Claimant
was found to have violated general safety rule (h) and was assessed a five-day
suspension.
Form 1 Award No. 10041
Page 2 Locket No. 10294
2-SOO-CM-184
The Organization in its argument and submission to this Board maintains
that Claimant was not advised of a precise charge, that he failed to receive a
fair and impartial hearing, and that the Carrier failed to meet its burden of
proof as to the charges. The Carrier's charging letter sufficiently informed
Claimant that he was being investigated for a Rule (h) violation of failing to
report a personal injury. The appropriate date, time and omission by Claimant
were in the Board's view, sufficiently set forth to enable Claimant adequate
notice from which he could prepare his defense to the charge. Review of the
entire record by this Board reveals that Claimant had a fair and impartial
hearing with opportunity to present evidence and witnesses, and to
engage in
cross-examination.
However, this Board is compelled upon examination of the entire record to
sustain the Organization's contention that Carrier has failed to meet its burden
of proof. Safety Rule (h) states that "every injury must be immediately reported'
to superior officer." The record reveals that while Claimant did not complete
a written report until 48 hours after the incident but before he sought medical
attention, Claimant testified that he had told the lead carman he had bumped
his back on the day of the incident. While Carrier vigorously argues that
Claimant should have informed his foreman of the incident rather than the lead
carman, Carrier's own hearing officer acknowledged that the "superior officer
would be his leadman or anybody that is in charge." The Organization's local
chairman testified to the leadman's acknowledgement that Claimant reported that
the latter bumped his back. Carrier's car foreman admitted to not being at
work on the day of the incident, and his testimony upon both direct and crossexamination revealed that the leadman did not know or remember whether Claimant
had reported the incident to him.
The working agreement between the parties provides in Rule 40, paragraph
1, at follows:
"1. Employees injured while at work will not be required
to make accident reports before they are given medical
attention, but will make them as soon as practicable
thereafter. Proper medical attention will be given at
the earliest possible moment, and, when able, employees
shall be permitted to return to work without signing a
release pending final settlement of the case."
Both the Organization's and Carrier's reliance upon Rule 40 on this appeal is
inapposite. There is simply no showing that the filing of Claimant's written
accident report 48 hours after the incident and after he had verbally notified
his superior officer of the occurrence is a violation of Safety Rule (h) when
reasonably construed with Rule 40. The Board recognizes that safety is of
utmost importance to all Carriers, and is of equal importance to the employees
own safety and protection. However, it is the duty of this Board to apply
rules and contractual provisions to the particular facts and circumstances of
each case. The burden of proof rests upon the employer to establish that by
substantial, credible evidence the employee committed the offense as charged.
The Carrier has failed to meet that burden here.
Form 1 Award No. 10041
Page 3 Docket No. 10294
2-SOO-CM-184
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
~9 ,
Nancy ver - Executive Secretary
Dated at Chicago, Illinois, this 22nd day of August 1984°