Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32498
Docket No. MW-32687
98-3-95-3-631
The Third Division consisted of the regular members and in addition Referee
Hyman Cohen when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Railroad
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline (mark of censure) imposed upon the Machine
Operator G. D. Rollings for alleged violation of Rules 567 and 589
in connection with an injury he sustained on April 14, 1994 was
unwarranted, on the basis of unproven charges and in violation of
the Agreement (System File S-P-530-W/MWB 94-10-05AB).
(2) As a consequence of the violation referred to in Part (1) above, the
Claimant's record shall be cleared of the charges leveled against
him."
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 Act, as
approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 32498
Page 3 Docket No. MW-32687
o8_3_g5_3_631
However, in filling out his personal injury report on April 17 he described how the
incident occurred by stating that he "thought he had his foot on the rail after which he
stated that he "did not" have his foot on the anchor. His personal injury report is at
variance with his testimony in which he stated that his foot was on the anchor when the
incident took place. The Claimant acknowledged that the description of the incident set
forth in his personal injury report was "correct." Since the Claimant failed to comply
with the appropriate procedure in removing rail anchors, the Grievant failed to exercise
due care to prevent an injury to himself, in violation of Rule 567.
turning
_ c_·1
l_r_
al._
:n~ujrv in ·.a timely
lng
t(1
the Claimant's
Id1UC
'to report
a
the personal . . ..
manner, he admitted that at the time of the occurrence, he "felt a discomfort" but no
pain. He worked the following day, on April 15, without incident. However, on
Saturday, April 16, he noticed that his foot was swollen. On Monday, April 18, the
Claimant first notified the Carrier of his injury and filled out a personal injury report.
Rule 589 clearly imposes an obligation on an employee to complete a personal
' ~ be-r a the end ~f hid t~y~r ~f de
by
In referrinu to a similarly worded Rule
Inj
j r e.po.
c .1..J. __a _
of another Carrier, this Board, in Third Division Award 23484, observed:
".
. . The Carrier must strictly enforce Rule I 110 to enable the Carrier to
allow injured employees to receive medical care to mitigate its liability
exposure should the employee file a claim against the Carrier, to correct
any condition causing the injury and to permit the Carrier to immediately
investigate the incident. Third Division Award No. 19298. . . ."
Clearly, the Claimant violated Rule 589. Although the Claimant worked the day
after the incident in question, despite the discomfort he felt at the time of the occurrence,
it would be unwise to ignore his indifferent and careless behavior which could .have
aggravated the injury. See, e.g., Third Division Award 24031.
Before concluding this decision, the Organization has raised a procedural issue
which must be addressed. The Organization contends that the Hearing Officer refused
to permit the Claimant's Foreman to testify with respect to the Claimant's work habits,
and his concern about safety. The Claimant was the only witness to the incident giving
rise to his injury on 'April 14. T he specific events of that day ar a relevant
11'.
t1::3 `193mlte.
As he stated in his personal injury report, he "thought" he "had This/ foot on anchor, but
did not" which is contrary to his training and the customary method of "knocking off'
Form 1 Award No. 32498
Page 2 Docket No. MW-32687
98-3-95-3-631
Following an Investigation, the Carrier notified the Claimant that he had violated
Rules 567 and 589
of
the Carrier's Safety Rules and General Rules. Rule 567, in
relevant part provides that employees are required not to "incur risk w hi c h car. be
avoided by exercise of care and judgment and they are required to exercise care to
prevent injury to themselves and others." Rule 589 in relevant part states that an
.,lo, oe is rnn4~ired
t--n
fl--1- _I nut a nersonal injury report before the end of his tour of
duty. The Claimant received a mark of censure for violation of Rules 567 and 589.
On April 14, 1994 the Claimant and his gang were engaged in work near Kelso,
.L_a h,...,
h _ injured:
Washington. While removing rail anchors, he described how
ua.
,:as
"I had my foot laid up on an anchor, knocked it off with a 12-pound sledge,
like we're supposed to be doing and it bounced off, come back, hit the side
of my foot and that was it."
The Claimant did not notify his Foreman or any other Supervisor
of
the incident
and he continued to pee ur
ni
his assigned tasks. .The following morning, on April 15, he
reported for duty and worked the entire day without incident.
On Saturday, April 16, the Claimant said that he first became aware of injury to
his foot when he found it difficult to put his shoe on because his foot was swollen. T he
following day, on Sunday, April 17, he sought medical attention and found out that he
had suffered a broken bone in his right foot.
On Monday, April 18, 1994, the Claimant reported for work .end informed
Foreman Dalton and Roadmaster Mesford of his injury. lle also filed a personal injury
report with the Carrier on that date.
Based upon the record, it is the Board's judgment that the claim must be denied.
The Claimant said that while he was engaged in knocking off rail anchors on April 14,
1994 there was
hvdra_niic
nil in
and around the area. Although he first stated that the
spill of hydraulic oil can cause an unsafe condition, he acknowledged that it "was an
every day occasion" to work "around . . . machines" that have a hydraulic leak. In light
of the "every day" circumstances, it was not an unsafe practice to remove the anchors.
The Claimant stated that when the injury occurred he had his foot on the anchor
which is consistent with his training and the common method of removing rail anchors.
Form I Award No. 32498
Page 4 Docket No.
MW-32687
no Z 0G
3 631
70°J-/~-
the rail anchors. In light
of
the Claimant's admission of failing to comply with the
proper method
of
removing rail anchors, the testimony
of
the Claimant's Foreman with
respect to the general nature
of
the Claimant's concern for safety, while at work, is
irrelevant.
The Car r ier'3
;.ligfiplinn of
cPnc ire for violation
of
Rules
567
and
589
cannot be
considered arbitrary, discriminatory, or excessive. The Board finds that the Carrier's
discipline
of
the Claimant is not to be disturbed.
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
March
1998.