Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11417
SECOND DIVISION Docket No. 11336
88-2-86-2-150
The Second Division consisted of the regular members and in
addition Referee Thomas F. Carey when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(CSX Transportation Inc. (SCL)
STATEMENT OF CLAIM:
1. That the CSX Transportation, Inc. (SCL) violated the controlling
Agreement, in particular Rule 32, when Electrician Apprentice G. K. Harris was
unjustly dismissed from service effective October 10, 1985 as a result of
formal investigation held September 11, 1985 at Hialeah, Florida.
2. That accordingly the CSX Transportation, Inc. (SCL) compensate
Electrician Apprentice G. K. Harris in the amount of eight (8) hours pay per
day at the pro rata rate from the date of October 10, 1985 when Carrier dismissed Mr. Harris from service until the date Mr. Harris is allowed to return
to service both dates inclusive and all other rights that accrue to his
position at Hialeah, Florida.
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 waived right of appearance at hearing thereon.
On August 25, 1985, the Claimant experienced neck, shoulder, and arm
pain. He was driven to the Miami Shores Hospital Emergency Department by a
relative, where he was examined by a Doctor. The physician x-rayed his cervical and thoracic spine and concluded that the Claimant was suffering from
neck and upper back muscle strain. The Doctor prescribed a muscle relaxant
and recommended that the Claimant stay home from work for a day or two if the
pain persisted. On August 26, 1985, the Claimant phoned the General Foreman
advising him that he was unable to report to work due to a muscle injury.
According to the General Foreman during that conversation the Claimant told
him that he was unsure if the injury had been sustained on August 22, 1985,
while connecting 480 volt cables in a locomotive. However, the Claimant
testified that he told the General Foreman that he had sustained the injury on
the job that day.
Form 1 Award No. 11417
Page 2 Docket No. 11336
88-2-86-2-150
On August 27, 1985, the Claimant returned to work and, according to
VOW
his Supervisor stated that he had injured himself while on duty on August 22,
1985. He was ordered to report to the Foreman's office and await further
instructions. He filled out an Accident Report, but declined to signify that
he had refused medical treatment for his on-the-job injury. The Claimant was
then escorted by the General Foreman to the Company doctor for an examination.
That physician cleared him to return to work.
Alleging that the Claimant had given contradictory reports on the
source of his injury, the Carrier charged him with violating the section of
Rule 3 of the Seaboard System Railroad Rules and Regulations of the Mechanical
Department which reads, "...dishonesty ...making false statements or concealing
the facts concerning matters under investigation will subject the offender to
dismissal." An investigation was held, and the Claimant was found guilty as
charged and dismissed on October 10, 1985. On November 22, 1985, the Organi
zation filed a complaint that the Claimant had been improperly disciplined as
he had not been afforded a fair and impartial investigation. This Claim was
denied by the Carrier's Superintendent at Hialeah, Florida, on December 11,
1985.
In the testimony presented before this Board there appears to be some
disagreement as to what was said during the telephone conversation between the
Claimant and the General Foreman on August 26, 1985. However, the Medical
Report from the Emergency Department of Miami Shores Hospital clearly established that the Claimant was seen on August 27, 1985, by the Doctor, and that
x-rays revealed that the Claimant was suffering from muscle strain in the neck
and upper back. That evidence, in itself, is sufficient to substantiate the -
credibility of the Claimant's testimony in regard to his injury. Whether that
injury was job-related is not an issue before this Board. The facts in the
case, therefore, do not support the Carrier's charge against the Claimant. He
is to be reinstated to his former position and to be made whole for all lost
wages and benefits as provided for in the schedule agreements.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
01
Attest:
Nancy J her - Executive Secretary
Dated at Chicago, Illinois this 20th day of January 1988.