The Claimant entered the Carrier's service in April 1997 after passing a routine physical examination. He bid for a Welder's Helper position on Gang 6158 on January 25,1999 under the supervision of P. Kelley. Several weeks later, the Claimant informed Kelley that he was having problems of unknown origin with his back which would likely require surgery in the near future. The Claimant further informed Kelley that his personal physician had not imposed any work limitations but had advised him to avoid strenuous physical activity.
Kelley testified, "we basically made the decision to let [the Claimant] go ahead and work, but with the understanding that he wouldn't do anything to strain or hurt his back until he had his operation." He told the Claimant to complete an incident report about the matter. The Claimant misplaced the form, requested another, and submitted it to Kelley on or about March 1,1999. Consistent with his conversation with Kelley, the Claimant stated In the report, "I am not sure what caused my back to start hurting."
On March 24,1999, the Claimant was assisting Welder Foreman J. Whitehead remove an 80-pound grinder machine from the rear of the gang's assigned truck. There is no dispute that he and Whitehead had performed this task together many times before without incident. This time, however, the Claimant felt a sharp pain in his back that forced him on the ground.
The Claimant filled out an accident report following this incident claiming that he had injured his back as a result of moving the grinder. The reports further states: "I informed [Kelley] that I was having problems with my back before this injury."
The Claimant was subsequently advised to report for an Investigation in connection with possible violations of the following Carrier Rules:
Following an Investigation conducted on July 2,1999, the Claimant was assessed a Level 5 (dismissal) discipline under the Carrier's UPGRADE policy.
The Carrier contends that it established the Claimant's guilt by the requisite standard of substantial evidence. In support thereof, it argues that the Claimant submitted contradictory injury reports, first claiming that he had a pre-eidsting injury and then claiming that he was injured on the job. Such misconduct falls under the category of dishonesty, a summary discharge offense. In addition, the Carrier argues that the Claimant failed to follow instructions to work in a safe manner. His actions violated numerous Carrier Rules and fully warranted the penalty of dismissal, in the Carrier's view.
After thorough review of the record, we concur with the Organization when it argues that the evidence falls far short of meeting the Carrier's evidentiary burden. The charges directed against the Claimant, while numerous, cannot form the basis for discipline in the absence of sufficient probative evidence establishing that the Claimant in fact committed the misconduct alleged. Form 1 Award No. 36212
That evidence is lacking on this record. The charge of dishonesty is apparently predicated on the idea that the Claimant submitted contradictory or false incident reports in connection with his back injury. The Board fmds that conclusion to be unwarranted. The Claimant submitted the first incident report at his Supervisor's request after he reported a back problem. He did not claim that it was caused by an on-duty injury; in fact, he specifically stated that he did not know how the back problem originated. The Claimant's second incident report addressed the injury he sustained on March 24,1999. The two reports were based on two separate incidents. We find no inconsistency in the reports and absolutely no evidence of fraudulent or dishonest intent.
The Carrier also suggests that the Claimant performed unsafe practices in lifting the grinder on March 24, particularly because he had been reminded not to perform any unsafe act in connection with his weak back. As the evidence showed, however, the Claimant was performing his regular assignment to which the Carrier took no exception at any time until after he sustained an injury. Supervisor Kelley conceded that significant point. Moreover, Welder Forman Whiteford testified:
In light of the testimony of the Carrier's own witnesses, we find no basis for a finding that the Claimant violated Carrier Safety Rules by assisting the Welder Foreman in moving the grinder from the truck.
The many Rules cited in this case, standing alone, without adequate evidentiary support, amount to bare assertions that do not meet the Carrier's burden of proving its case by substantial evidence. It is apparent that the Carrier believes there are suspicious circumstances surrounding the Claimant's alleged personal injury on that date. However, discipline may not be assessed on the basis of speculation, conjecture or assumption. The claim must be sustained on that basis.
The Claimant is ordered reinstated with seniority and benefits fully restored. Reinstatement is conditioned upon the Claimant's providing the Carrier with a written Form I Award No. 36212
medical release to return to work and on the Claimant's passing a return-to-work physical examination. In addition, compensation for time held out of service is to be offset for the period of time during which the Claimant's physical condition would have rendered him medically unfit for work. Accordingly backpay, if any, will run only from the date the Claimant's doctor certified that he could have returned to service until he is returned to service.
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.