Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27651
THIRD DIVISION Docket No. MW-27055
88-3-86-3-105
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:
(Delaware and Hudson Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The fifteen (15) days of suspension imposed upon Trackman H.
Tallman for alleged violation of Rule 0-2 was without just and sufficient
cause and on the basis of unproven charges (Case II2-85).
(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 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.
Claimant was charged with falsifying an on-duty personal injury.
Following a Hearing held on November 9, 1984, Claimant was found guilty and
assessed discipline of fifteen (15) days suspension.
The Organization argues that Claimant did in fact experience an
on-the-job injury on June 20, 1984. It maintains that there is no evidence of
record to support the Carrier's finding of guilt.
The Carrier asserts that Claimant did not injure himself on the job.
Claimant reported for work on June 20, 1984, with a stiff neck. Employees
working with him on that day testified that Claimant reported no injury. Carrier maintains that Clai
the previous day was a falsified report.
It is the determination of this Board after a complete review of the
transcript and a thorough consideration of the facts that the record does not
support the Carrier's findings. The evidence indicates that Claimant did
Form 1 Award No. 27651
Page 2 Docket No. MW-27055
88-3-86-3-105
sustain a severe strain while retailing the rail lifter machine on June 20,
1984. Claimant did not report the injury until the afternoon of June 21,
1984. There is sufficient probative evidence that June 21, 1984, is the date
when the injury became known to the Claimant. As this Board has previously
stated "it is quite common for injuries to manifest themselves some time after
the incident that caused them." (Second Division Award 7703).
The Board is concerned with any incident wherein a Claimant fails to
report on-duty injuries immediately. The Claimant has a responsibility and
the Carrier a right to know of any injury at the time it occurs. This Board
is well aware that in the Carrier's responsibilities for safety and its operations, it must expect a
the Claimant notified Carrier a day late, but when it became clear that an
injury had occurred. The Board recognizes that this is not immediate notification, but Claimant was
Accordingly, the Claimant's record shall be cleared of the charge
leveled against him, as there is no evidence of record to conclude that
Claimant falsified a report of personal injury. The monetary portion of the
Claim is denied, however, account the November 15, 1984, discipline letter
stated that the time Claimant previously lost account of his neck disability
would be applied and no further time assessed.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: i
Nancy J. 5Ver - Executive Secretary
Dated at Chicago, Illinois, this 16th day of December 1988.