NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 THIRD DIVISION
Award No. 31546
Docket No.MW-32080
96-3-94-3-471
The Third Division consisted of the regular members and in addition Referee
Eckehard Muessig when award was rendered.
(Brotherhood of Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim
of
the System Committee
of
the
Brotherhood that:
(1) The twenty-eight (28) day suspension imposed upon Track Foreman
G.L. Pierson for alleged '...falsification
of
a service-related injury
when you reported to Track Supervisor R.G. Fech at 5:50 AM on
Thursday, August 12, 1993 that you had injured your back while
operating a hydraulic tamping gun an Anderson Yard on
Wednesday August 11, 1993.' was without just and sufficient cause,
on the basis
of
unproven charges and in violation
of
the Agreement
(System Docket MW-3108D).
(2) As a consequence
of
the violation referred to in Part (1) above,
Track Foreman G.L. Pierson's record shall be cleared
of
the
charges leveled against him and he shall be compensated for all lost
wages."
FINDINGS:
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 AM as
approved June 21,1934.
Form 1 Award No. 31546
Page 2 Docket No. MW-32080
96-3-94-3-471
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute waived right of appearance at hearing thereon.
Subsequent to an Investigation, the Claimant was found guilty of the following
charge, quoted verbatim:
"Your falsification of a service-related injury when you reported to Track
Supervisor R.G. Fech at 5:50 AM on Thursday, August 12, 1993 that you
had injured your back while operating a hydraulic tamping gun at
Anderson Yard on Wednesday, August 11, 1993."
The Organization, on the property, essentially contended that no testimony was
presented at the Investigation to show that the Claimant = ad injured while on duty.
Moreover, given the nature of the injury, it was not "impossible" for the symptoms of
the injury not to become apparent until a later time.
Certainly the Organization's contentions on behalf of the Claimant are
reasonable. However, the Claimant's own actions run counter to the contentions
advanced by the Organization.
In the first place, it is the Claimant's burden to show that the injury occurred on
the job. He did not meet this initial and critical burden. Here, the Board notes that two
supervisors, as well as the Claimant testified at the Investigation that the Claimant did
not experience any pain during the remainder of the day after his alleged injury. The
record shows that he performed several arduous tasks subsequent to the alleged injury.
The attending physician stated that it was unlikely that the Claimant could have
performed these tasks without pain if the Claimant had injured his back in the manner
which he described to the Carrier.
Accordingly, we find that the Carrier had a proper basis to conclude that the
Claimant was guilty as charged. Therefore, the claim must be denied.
Form 1 Award No. 31546
Page 3 Docket No. MW-32080
96-3-94-3-471
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 25th day of July 1996.