NATIONAL RAILROAD AnrosT<01ENT HOARD
THIRD DIVISION Docket Number MW-23786
Josef P. Sirefman, Referee
Brotherhood of Maintenance of Way Employee
PARTIES TO DISPUTE:
f
(The Denver and Rio Grade Western Railroad Company
STATEMENT OF MAIN: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Trackman G. A. Esquibel for his 'responsibility,
if any, is connection with Section Laborer G. A. Esquibel's alleged personal
injury' was without dust and sufficient cause, capricious, on the basis of
uaprove~ 5d1o)provea charges and is violation of the Agreement (System File
(2) Trachea G. A. Esquibel shall be reinstated with seniority,
vacation and all other rights unimpaired and be compensated for all wage loss
suffered."
OPINION OF HOARD: Claimant G. A. Esquibel, a Trackman with about three months
service, wan served with a notice of investigation "to
develop facts and place responsibility, if any, in connection with "his alleged
personal injury sustained near Littleton., Colorado, at approximately 3:15 PM,
Wednesday, May 16, 1979·" The investigation was held on May 31, 1979, and
Claimant was dismissed from the service by a letter to him dated June 8, 1979
from the Carrier's Superintendent.
A review of the record before this Board establishes that the notice
of investigation provided sufficient information to permit Claimant to properly
prepare a defense. The overriding need for prompt and full reporting to supervision of any injury su
in the Railroad industry, and Claimant was aware of such requirements. Yet,
the record further establishes that he did not report his claimed injury to
the Foremen on may 16, 1979, that he worked almost a full day on the 17th
before making his first report, and that when he did begin to report it was
in stages of ever increasing severity spread aver a number of days; from an
arm injury to subsequently include leg and ankle involvement. There was substantial evidence to sust
this serious infraction, and the penalty of termination was reasonable.
The last paragraph of Rule 2$(a) provides "A decision will be
rendered within tea (10) calendar days from the date of the investigation.
If not rendered within the ten (10) day period the employe, if held out of
service, will be paid a minimum day's pay for each day thereafter until a decision is rendered." It
Award Number 24014
Docket Number MW-23786
Page 2
rendering a decision also encompasses when notice of that decision is to be
sent
to a
Claimant. Here the decision of the Carrier was timely rendered
(June 8th) but the record is unclear as to what exactly ensued, other than
that the cancellation stamp on the envelope which ultimately reached the
Claimant was dated June 21, 1979. However, as the Claimant was not held out
of service but apparently did not report of his own volition, the last sentence
of the last paragraph of Rule 23(a) does not apply.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employee involved in this dispute are
respectively Carrier and Employee within the meaning of the Railway Labor
Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
That the Agreement was not violated.
A W p R D
Claim denied.
ATTEST: Acting Executive Secretary
National Railroad Adjustment Board
By
iaL
o emarie Brasch - Administrative Assistant
Dated at Chicago Illinois, this 20th day of October 1982.
NATIONAL RAILROAD AIUUSTKENT BOARD
By Order of Third Division
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