Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award
No. 10411
SECOND DIVISION Docket
No. 10559
2-SOU-CM-185
The Second Division consisted of the regular members and in
addition Referee Jonathan Klein when award was rendered.
( Brotherhood Railway Carmen of the
Parties to Dispute: ( United States and Canada
( Southern Railway Company
Dispute: Claim of Employes:
1. That under the current Agreement, Carman D. A. Davis,
Atlanta, Georgia, was unjustly suspended from service
from July
8, 1982
through August
6, 1982.
2.
That accordingly, the Carrier be ordered to pay Carman
D. A. Davis for all time lost while suspended from
service.
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 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 were given due notice of hearing
thereon.
While dismounting a car on May 11,
1982,
Claimant slipped
and strained his left knee. Claimant did not report his injury
or file a proper accident report that day. The following day,
May 12, 1982,
Claimant called in at
6:00
a.m. and marked off on
account of pain in his back. Later that same day Claimant again
called the Carrier to report that he would be off duty per his
doctor's instructions until further notice due to back pain. At
no time on May
12, 1982
did Claimant make an oral report, or an
accident report, of the injury to his knee on May 11,
1982.
On May
13, 1982
the Claimant appeared at the office of the
master mechanic. At that time Claimant presented the following
note to the master mechanic, which was placed in his file:
Form 1
Page 2
Award
No.
10411
Docket No. 10559
2-SOU-CM-'85
"May 12, 1982
TO WHOM IT MAY CONCERN:
Mr. Donald A. Davis requires rest at home to recover
from severe Back Pain and Injured Left Knee. He will
be off the job until at least Tuesday May 18, 1982.
Thank you.
/s/
Nison H. Shleifer M.D."
Despite the presence of the two general foreman in the
office when Claimant appeared, he did not request that an
accident report be prepared. On May 19, 1982 the Claimant spoke
with the general foreman before 7:00 a.m. to say that he would be
off until the 24th of May because of pain in his back and neck.
Not until approximately 7:00 on the evening of May 19, 1982 did
Claimant provide the information necessary for prepartion of an
accident report.
The Carrier argues that the Claimant was properly charged
with a violation of Rule 59 - Employees Injured at Work_ which
reads in pertinent part:
"Employees injured while at work will not be required
to make accident reports before given medical
attention.
as possibl
Medical attention will be given as quickly
e. Employees will make accident reports_ as
early as practicable, and will not be required to sign
a release pending settlement of the case." (Emphasis
supplied).
The Carrier held a
in accordance with
preliminary investigation on June 16,
1982 Rule 34(b). At the preliminary
investigation, Claimant and his duly accredited representative
were present. The Carrier's officer did not assess discipline at
the informal investigation. Instead, he orally notified Claimant
that a formal investigation would be scheduled on the charge of
failure to comply with Rile 59. The Carrier properly complied
with Rule 34(e) which states:
"In lieu of the procedures outlined
(c) and (d) above, if the Carrier
for holding a formal investigation
f disciplinary action,
assessment o
involved shall
subject matter
in Sections (b),
determines the need
prior to the
any employee
be furnished a letter setting out the
and any charges against him.
No
charge
shall be made involving any matter of which the carrier
officers involved have had knowledge for more than
thirty (30) days. Such letter shall set a time, date
and place for formal investigation which shall be
conducted by the employing officer, or his representative, as otherwise provided in Section (d) above.
Form 1 Award No.10411
Page 3 Docket No. 10559
2-SOU-CM-'85
The Organization's position that the charging letter is not
the same as the oral charge at the end of the informal
investigation is unsupported by the facts. The letter in a
succinct fashion sets forth the clear prohibition of Rule 59,
i.e., failure to timely report in a proper fashion a personal
injury accident.
The admission of Carrier's witnesses' testimony to the
effect that Claimant "marked off" on prior occasions is neither
relevant to the charge of a Rule 59 violation, or harmful and
prejudicial to Claimant. Claimant did not attempt to file a
timely accident report in accord with the requirements of Rule
59. The physician's note of May 12, 1982 which Claimant brought
in person to the Carrier's offices is evidence that as of that
date the Claimant knew he had injured his knee, but never asked
to prepare an accident report. This is distinguishable from
those situations where an accident is reported immediately upon
discovery that an employe has been injured. Public Law Board No.
2512, Award No. 56. Claimant failed to even orally advise his
foreman that his knee bothered him when he called the Carrier the
day after the alleged injury occurred. The Claimant did not
report the accident when he was physically present on the
property two (2) days after the injury. Compare, Public Law
Board No. 2512, Award No. 8.
As testified to by the Carrier's witnesses, and as this
Board concludes, not every bump, bruise or momentary pain is an
injury which must be reported under Rule 59. However, Claimant
must bear responsibility for failure to report an injury for
which he received, and would continue to receive, medical
attention despite ample opportunity to do so. The Board finds on
the basis of the record that the Carrier's disciplinary action
was neither arbitrary or unreasonable, and therefore, we must
deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
'Nancy J. a r - Executive Secretary
Dated at Chicago, Illinios, this 22nd day of May, 1985.