Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13670
Docket No. 13538
02-2-00-2-15
The Second Division consisted
of
the regular members and in addition Referee
Herbert L. Marx, Jr. when award was rendered.
(Brotherhood Railway Carmen Division
( Transportation Communications International Union
PARTIES TO DISPUTE:
(Delaware and Hudson Railway Company, Inc.
STATEMENT OF CLAIM:
"Claim
of
the Committee
of
the Union that:
1. That the Delaware & Hudson Railway Company violated the terms
of
our current agreement, in particular Rule 26.1 when they
administered discipline of forty (40) demerits to John J. Hammond
as a result
of
an investigation held on March 8, 1999.
2. That accordingly, the Delaware & Hudson Railway Company be
ordered to remove the record
of
discipline and all related
correspondence from the record and file
of
Carman John J.
Hammond."
FINDINGS:
The Second Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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. 13670
Page 2 Docket No. 13538
02-2-00-2-15
Following an investigative Hearing, the Claimant was assessed 40 demerits for
violation of Rules as follows:
"Failure to comply with NORAC Rules R and T of the General
Rules . . . and Rules 1.1, 1.5a, 1.11 and 4.1 of the D & H Employee Safety
Code and Policy . . . which resulted in a personal injury on November 25,
1998 and failure to report same, at the D & H Binghamton Yard Facility,
while performing your duties as a Carman."
The cited Rules may be summarized as follows:
"R. Injuries on Railroad Property
A report of [an injury on railroad property] must be made
promptly to the designated office, followed by a full written
report on the prescribed form ....
T. Reporting for Duty; On Call
. . . Employees must not absent themselves from duty or leave
their assignment or engage a substitute to perform their
duties without permission
of
a designated officer.
1.1 Protect yourself, your fellow employees and the public by observing
all safety rules and procedures.
1.5 a. Conduct your work in an orderly and safe manner.
1.11 Practice safety in everything you do.
4.1 Ensure that safety is the first consideration on all jobs."
The Organization summarizes the incident here under review as follows:
"On November 25, 1998 at approximately 5:00 P.M., the claimant, while
changing a brake shoe on a freight car in the East Binghamton, NY Yard,
felt a momentary pain in his knee. He continued to work the remainder
of
Form 1 Award No. 13670
Page 3 Docket No. 13538
02-2-00-2-15
his shift, approximately seven (7) hours, without complaint or any further
discomfort. When the pain increased in the following days, to the point
that it was a readily identifiable injury, he promptly notified the carrier."
The Carrier does not take exception to this account except, most significantly, the
use of the word, "promptly." The Carrier argues that Rule R required the Claimant to
report his "injury" on the date it occurred, Wednesday, November 25, 1998. The
Claimant was off duty on November 26 - 28 and was scheduled to return to duty on
November 29. Prior to reporting, he contacted his Supervisor, advising of his
discomfort, and was provided with medical attention. He did not return to work until
February 10, 1999.
The Board concludes that the Claimant failed to comply with Rule R in that the
knee pain he experienced should have led him to report such at the time it occurred. No
substantive violation of Rule T is found, in that he did not "absent [himself] from duty,"'
because he did advise his Supervisor by telephone and did report for duty as scheduled.
The other cited Rules concern the following of safe practices while at work. They
record of the investigative Hearing does not disclose any proven violation of these Rules.,
nor do the charges against the Claimant give any indication of the possible nature of
such alleged violation.
The Organization protests the severity of the 40-demerit disciplinary action,,
noting that 60 demerits may result in dismissal from service. Because the Board
concludes that the Claimant made a judgment error in not recognizing that his
November 25 injury might have serious physical consequences (as was indeed the case)
and because the Carrier is fully entitled to be alerted to such circumstances, some
corrective disciplinary action is warranted. Awards cited by the Carrier in support of
its action each involved falsification, dishonesty, or an issue of an employee's lack of
credibility. None of these offenses was shown to be applicable here. In addition, there
is lack of proof of violation of most of the Rules cited in the charges.
As a result the Board finds the penalty to be unreasonably harsh. The Award will
reduce the penalty to ten demerits.
Form 1 Award No. 13670
Page 4 Docket No. 13538
02-2-00-2-15
As a procedural objection, the Organization protested the absence
of
the
Charging Officer at the Hearing. The Board finds this without substance, as discussed
in Second Division Award 13672.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimants) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 11th day of February, 2002.