Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26772
THIRD DIVISION Docket No. MW-26623
88-3-85-3-375
The Third Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company (Southern Region)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
1. The five (5) days of suspension imposed upon Trackman E. F. Hall
for alleged violation of Safety Rule No. 1 was improper, unjust and in
violation of the Agreement (System File C-D-2386/MG-4773).
2. The claimant's record shall be cleared of the charge leveled
against him and he shall be compensated for all wage loss suffered."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employees 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.
Claimant was notified by Certified Letter of May 14, 1984, to attend
an Investigation to determine his alleged responsibility for a violation of
Safety Rule No. 1. That Rule requires all employees:
"To report all personal injuries to proper supervisory officer, giving full details in duplicate
Form CJ-68 before ending tour of duty or as soon
thereafter as possible."
On or about 2:30 P.M. on April 11, 1984, Claimant sustained a back
injury while lifting railroad ties. He missed the next few days of work,
reporting sore muscles. It later developed that Claimant had an acute sprain
injury.
After postponements, an Investigation was held on June 27, 1984. The
Claimant was subsequently notified that he had been found at fault and was
assessed a five (5) days actual suspension for violation of Safety Rule No. 1.
Form 1 Award No. 26772
Page 2 Docket No. Mw-26623
88-3-85-3-375
Central to this dispute is a procedural issue which must be considered before reaching the merit
that the Hearing was not held within the time specified by Agreement Rule 21.
In pertinent part, the applicable Rule states that:
"He may, however, be suspended pending such
hearing, which shall be held within twenty (20)
days of the Company's knowledge of the alleged
offense and decision shall be rendered twenty (20)
days from completion of hearing." (emphasis added)
In the facts and circumstances of this case, Claimant contacted the
Track Supervisor by phone on April 26, 1984. The Track Supervisor testified
in part that:
"Mr. Hall called me that morning and in the conversation he said he had hurt his back . . . At
this time I asked if he had been injured and he
said that he thought it was account of not just
doing any work. When he went to the doctor he
found something wrong with his back or neck and the
doctor had kept him off from work. At this time I
told him that he should have filled out a CJ 68
accident report if there had been an accident.
There was no way possible for me to help pay his
doctor bills or even consider paying for doctor
bills unless there was a CJ 68 filled out on the
injury because that is how they pay the bills."
The Organization argues that the "Supervisor on that district was
aware" of the injury on April 26, 1984. The twenty (20) day time limit in
which a Hearing must be held was violated when the Hearing was scheduled for
May 24, 1984.
The Carrier does not deny that the phone call was made, nor that the
Claimant's problem was discussed. It states that neither the phone conversation nor other events "es
injury." It argues that only when the Claimant filed the CJ-68 was the injury
known to the Carrier and thereafter it acted within the Rule.
This Board finds that the Carrier was aware of the Claimant's injury
on April 26, 1984. The testimony of the Track Supervisor establishes that an
injury had occurred. The Carrier was on notice that Claimant may have violated Safety Rule No. 1. Ac
violates the Agreement and we may not reach the merits. The Claim must be
sustained as submitted.
Form 1 Award No. 26772
Page 3 Docket No. MW-26623
88-3-85-3-375
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J ver'- Executive Secretary
Dated at Chicago, Illinois, this 15th day of January 1988.