Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10918
SECOND DIVISION Docket No. 10995
2-BRCofC-EW-'86
The Second Division consisted of the regular members and in
addition Referee T. Page Sharp when award was rendered.
(International Brotherhood of Electrical Workers
Parties to Dispute:
(The Belt Railway Company of Chicago
Dispute: Claim of Employes:
1. That the Belt Railway Company of Chicago erred and violated the
contractual rights of Mr. Edward D. Vojcak when they removed him from service
on August 10, 1984 at 4:00 p.m. as a result of an investigation held on August
1, 1984 at 9:00 a.m.
2. That the investigation was neither fair nor impartial.
3. That, therefore, he be returned to service with seniority and all
other rights, benefits and privileges restored; and,
4. That he be compensated for all lost time including overtime and
holiday pay; and,
5. That he be made whole for helath (sic) and welfare benefits,
6. That he be made whole for all vacation rights; and,
7. That he be made whole for pension benefits, unemployment, and
sickness insurance; and
8. That he be made whole for any and all other benefits, not mentioned herein, that he would have received or would have earned had he not
been withheld 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.
Form 1 Award No. 10918
Page 2 Docket No. 10995
2-BRCofC-EW-'86
Claimant, Edward D. Vojcak, was an Electrician in the employ of
Carrier on August 1, 1984. On that date his actions were the subject of an
Investigation in which he was charged with:
"to determine your responsibility, if any, in
connection with your alleged failure as required by
Company Rules to report or identify a personal
injury which was alleged to have taken place prior
to June 26, 1984, at 6900 South Central Avenue,
Chicago, Illinois.
Management's first knowledge being June 26, 1984
from the law offices of Brobyn and Forceno, whose
address is The Philadelphia Bourse, Independence
Hall East, Philadelphia, Pennsylvania 19106, which
Mr. Vojcak has retained in claim for damages
against the Belt Railway Company of Chicago."
As a result of the evidence adduced at the Investigation, the Investigating
officer held that the charges had been proved and dismissed Claimant from
Carrier's service effective August 10, 1984. The Carrier notified Claimant on
October 12, 1984, that the dismissal was being reduced to a sixty five day
suspension.
Claimant testified that he discovered on June 22, 1984, as a result
of medical tests, that he had contracted asbestosis. The Carrier was notified
of Claimant's condition by letter dated June 26, 1984, from a law firm
representing Claimant. The letter stated:
"Dear Sir/Madam:
Be advised that we have been retained by the above
named individual to pursue an occupational disease
claim against the railroad. . .
Preliminary medical testing indicates that our
client suffered injury and damage due to an unsafe
and unhealthy workplace. Consequently, be on
notice that we will be investigating and pursuing
the claim for our client.
Feel free to contact this office for particulars
regarding the claim.
Signed"
w~
Form 1 Award No. 10918
Page 3 Docket No. 10995
2-BRCofC-EW-'86
After receipt of this letter the charges were filed.
The Carrier contends that Organization was in violation of Rule P
which states:
"RULE P
Personal injury while on duty must be reported at
once to your immediate superior officer or supervisor, giving full detail as to how injury
occurred. Officer or Supervisor will upon
receiving such report, phone the Belt Police
Department office full particulars as to name,
nature of injury and pertinent details."
Claimant contends that injury as described in the Rule relates to
some traumatic physical injury deserving of immediate attention, i.e. a broken
arm. Claimant testified that he did not consider a disease to come within the
meaning of the Rule. He admitted that he was familiar with the reporting
requirements of the Rule.
The Carrier would have Claimant convict himself through the letter of
his agent, the law firm. It claims that the allegation of the firm that Claimant suffered injury due to an unsafe and unhealthy workplace is an admission
that the disease was an injury contemplated by the Rule.
Black's Law Dictionary defines .injury as "To violate the legal right
of another or inflict an actionable wrong". An attorney must describe a cause
of action in accepted legal jargon. To say that an employee had contracted a
disease because of an unsafe workplace is not to describe legally an event
capable of being addressed by a court. When the attorney informed the Carrier
that Claimant had suffered injury and damage, the reference is obviously to
concepts which have legal consequences. Therefore, the Board cannot accept
this contention as an admission of wrongdoing.
The literal wording of Rule P would indicate that the authors thereof
had an immediate injury in mind. The likelihood of an employee suffering
from asbestoses being able to report in full detail how the injury occurred is
small. The second requirement that the Supervisor immediately report the
injury to the Belt Police Department would seem to serve no useful function in
the case of a disease.
The Board holds that the Rule was not designed to encompass gradual
diseases such as the one suffered by the Claimant. We find that he was not
derelict in his duty by not reporting his discovery in the manner specified by
Rule P.
Form 1 Award No. 10918
Page 4 Docket No. 10995
2-BRCofC-EW-'86
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
4~Z~Z'
00&'V'~
ancy J/W11er - Executive Secretary
Dated at Chicago, Illinois, this 9th day of July 1986.
low