The Third Division consisted of the regular members and in addition Referee Martin H. Malin when award was rendered.
The Third 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 waived right of appearance at hearing thereon.
On July 31, 1991, Claimant was advised to report for an Investigation on August 14, 1991, to determine his responsibility in connection with his "apparent injury proneness as evidenced by your fifteen personal injuries allegedly sustained by you during Form 1 Award No. 30907
employment with this company, reports of which will be reviewed at the investigation." The Investigation was postponed to and conducted on August 27, 1991, and on September 6, 1991, Claimant was advised that he had been found to be an unsafe and injury prone employee and that he was dismissed from service.
The Organization contends that Carrier failed to afford Claimant a fair hearing. The organization argues that the charge was vague and failed to specify the rules Claimant was alleged to have violated. The Organization further contends that Claimant was found guilty of violations with which he was not charged. The charge went back twenty-two years and the Investigation amounted to an improper fishing expedition.
The Organization also maintains that Carrier failed to prove that Claimant was accident prone. Carrier's proof consisted of comparisons between Claimant's injury rate and the injury rates of the ten employees closest to him in seniority. The Organization attacks the use of such statistical comparisons as capable of manipulation and not probative of claimant's responsibility for any of the injuries.
Furthermore, the Organization contends that Carrier never charged Claimant with a safety or other rule violation after any of his injuries and may not do so years later. The Organization also argues that Carrier offered no proof other than the statistical comparisons that Claimant fails to work safely and that the statistical comparisons standing alone lead only to speculation as to Claimant's work habits. Such speculation cannot support any discipline.
Carrier contends that the hearing officer provided Claimant with a fair and impartial hearing. Carrier further contends that the statistical comparisons established that Claimant was an unsafe employee. Carrier points out that Claimant had been counselled previously concerning his injury record and the need to exercise greater attention to working safely. Despite this, Claimant continued to injure himself at a rate considerably above the norm.
The Board has reviewed the notice of the charge and the transcript of the Investigation. We have concluded that the Organization's procedural objections lack merit.
There are numerous and conflicting Awards considering charges that employees were accident prone. Among other things, these Awards conflict over whether a separate, timely Investigation is required for each injury and over the probative value, if any, of statistical comparisons of employee injury records.In Third
Division Award 30747, issued with this Referee, we quoted a frequently-cited definition of accident prone which was first provided in First Division Award 20438:
We do not find persuasive the Awards which require that every injury be the subject of an individual Investigation with specific evidence of the employee's culpability. These Awards fail to recognize that statistical evidence may establish a pattern or practice of unsafe conduct in particular cases. Such a pattern or practice may support disciplinary action even though direct evidence of specific rule violations was not presented. On the other hand, we do not agree that every statistical pattern will support an inference of culpable conduct. Each case must be evaluated on its individual facts.
A statistical analysis of an employee's injury pattern begins with the identification of a peer group of similarly situated employees. Based on the peer group's record, one may calculate an expected injury rate. When a particular employee's observed injury rate deviates from the expected rate, one must inquire whether the deviation is the result of chance. If the deviation is not likely to be the result of chance, it is likely to have been caused by something specific. In the absence of another explanation, one may infer that its cause was the employee's inadequate care or foresight. Form 1 Award No. 30907
Statisticians have developed several techniques to calculate the probability that the deviation between the observed injury rate and the expected injury rate was the result of chance. The Awards dealing with charges of being accident prone, however, do not employ standard deviations, Chi Squares, or other sophisticated techniques. Rather, they rely on raw data. Considerable caution must be exercised when relying on raw data that has not been refined with the level of precision that might otherwise be available.
The primary factor to consider when evaluating raw data is the magnitude of the disparity between the employee's observed injury rate and the expected value. The greater the magnitude, the more confident we can be that the deviation is not the result of char-e, even in the absence of more sophisticated analysis. Also significant is the size of the peer group from which the expected value was derived. Consideration must also be given to the seriousness of the injuries. If all of the injuries were minor, resulting in no time lost, it is possible that the disparity between the employee's injury rate and the peer group resulted because the employee was more meticulous than his coworkers about reporting his injuries. Finally, specific evidence of employee culpability in some of his injuries, particularly where the evidence is contemporaneous with the injuries themselves, may reinforce an inference that the employee is accident prone.
Taking all of the evidence into consideration in the instant case, we conclude that Carrier proved, by substantial evidence, that Claimant demonstrated a propensity to get hurt in performing service in his occupation under conditions where successive injuries could have been avoided if the employe had exercised more care or foresight. Carrier's Superintendent of Safety constructed a peer group consisting of the ten employees with comparable duties who were closest in seniority to the Claimant. This group averaged 3.5 injuries.
Claimant, on the other hand. accumulated 15 injuries, a rate that was almost five times greater than the expected injury rate. The disparity between Claimant's injury rate and his relevant peer group was so great, that one can confidently conclude that it is highly unlikely to have resulted from chance, even in the absence of more sophisticated refinement of the data. This conclusion is reinforced by the presence of six injuries in the three and onehalf years preceding his discharge.
Furthermore, Claimant's injury record cannot be dismissed as the result of meticulous reporting of minor injuries that did not result in lost time. Most importantly, the statistical record was Form 1 Award No. 30907
accompanied by contemporaneous evidence of Claimant's culpability. Claimant was counselled regarding the need to pay greater attention to safety in 1975, 1977, twice in 1978, 1980, 1986 and 1988. Despite these efforts by Carrier, Claimant's safety record did not improve. Indeed, if anything, it appears to have gotten worse. As we observed in Third Division Award 30747:
Finally, we observe that Claimant's explanations for his injury record are contradicted by the documentary record. For example, Claimant tried to explain away eye injuries that he had suffered by claiming that at the time, safety glasses were not required and often were not supplied. The record, however, indicated that on at least two occasions, Claimant was counselled that he was expected to wear his safety glasses to protect his eyes. Accordingly, we conclude, based on the particular facts in this record, that Carrier proved that Claimant was injury prone.
The next issue is the severity of the discipline imposed. Under the circumstances of this case, we find that the penalty of discharge was excessive. In particular, we find significant Claimant's long record of service to Carrier (22 years) and the absence of any formal discipline imposed on Claimant despite Carrier determinations that Claimant failed to work safely. We find that progressive discipline was warranted prior to imposing the industrial capital punishment of discharge. See Second Division Award 10395; Third Division Award 25895.
Accordingly, we will reduce the discipline from dismissal to a suspension equal to time held out of service. Claimant shall be reinstated to service, conditioned on passing a reasonable physical exam, with seniority and benefits unimpaired, but without backpay.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) 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.