Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36766
Docket No. SG-36692
03-3-01-3-237
The Third Division consisted of the regular members and in addition Referee
Rodney E. Dennis when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Burlington Northern Santa Fe Railway Company
( (former Atchison, Topeka & Santa Fe Railway)
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Atchison, Topeka & Santa Fe Railway
(ATSF):
Claim on behalf of D. D. Henderson for payment all lost wages plus
skill pay and removal of any reference to this matter from the
Claimant's personal record. Account Carrier violated the current
Signalmen's Agreement, particularly Rule 41, when it issued a Level
S-20 day suspension against the Claimant. Carrier failed to meet the
burden of proof and failed to conduct a fair and impartial
investigation, in connection with an investigation held on August 20,
1999. Carrier File No. 35 00 0010. General Chairman's File No.
BRS 01141. BRS File Case No. 11543-ATSF."
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.
Form I Award No.
36766
Page
2
Docket No.
SG-36692
03-3-01-3-237
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
At the time of the incident that gave rise to this dispute, Claimant D. D.
Henderson was working as a Student Signalman on Gang
28213,
headquartered at
Ft. Sumner, New Mexico. The record reveals that on August 1, 1999, the Claimant
submitted a Medical Status Form indicating that the cause of his medical problem
was the result of an on-duty injury. The Claimant filed the official "accident
report" on August
12,
1999. In this report, the Claimant alleged that he hurt his
back while cleaning around switches, moving ballast, and picking ballast. He
indicated that the alleged accident took place on July
12,
1999.
On August
13,
1999, the Claimant was issued the following Notice of
Investigation:
"August
13,
1999
Mr. D. D. Henderson
3208
Ross
Clovis, NM
88101
Mr. Henderson:
Please arrange to report to the Burlington Northern Santa Fe
conference room,
1624
First Street NW, Albuquerque, NM
87102
at
10:00 AM, August 19th, 1999, for formal investigation. to develop the
facts and place responsibility, if any, in connection with possible
rules violation, Rules 1.1 - Safety,
1.2 - Personal
Injuries and
Accidents, and
1.6
- Conduct, of the Burlington Northern Santa Fe
Maintenance of Way Operating Rules, concerning your alleged
personal injury, on July
12,
1999, while assigned as Student
Signalman on Gang
28213,
at Ft. Sumner, New Mexico.
Form 1 Award No. 36766
Page 3 Docket No. SG-36692
03-3-01-3-237
You may arrange for representation in line with the provisions of
schedule or agreement governing your working conditions, and you
may arrange for the appearance of any desired witnesses at your
own expense.
Please acknowledge receipt and understanding of this notice by
signing the second copy of this letter in the space provided therefore
and return to the undersigned.
Respectfully,
W. F. Dorcey
Manager Signals"
Rules Pertinent to this Dispute
1.1 Safety:
Safety is the most important element in performing duties. Obeying
the rules is essential to job safety and continued employment.
1.2.5 Reporting:
All cases of personal injury, while on duty or on company property,
must be immediately reported to the proper manager and the
prescribed form completed.
A personal injury that occurs while off duty that will in any way
affect employee performance of duties must be reported to the
proper manager as soon as possible. The injured employee must
also complete the prescribed written form before returning to service.
Form 1 Award No. 36766
Page 4 Docket No. SG-36692
03-3-01-3-237
1.6 Conduct:
Employees must not be:
1. Careless of safety of themselves or others
2. Negligent
3. Insubordinate
4. Dishonest
5. Immoral
6. Quarrelsome or
7. Discourteous.
A Hearing in the matter was held on August 20,
1999,
in Albuquerque, New
Mexico. A transcript of the Hearing has been made a part of the record. As a result
of that Hearing, the Carrier found the Claimant guilty of violation of Rules 1.1 -
Safety, 1.2 Reporting and 1.6 Conduct. The following letter of discipline was sent to
the Claimant on September 27,
1999:
"David D. Henderson September 27,
1999
SS# XXX-XX-XXXX
3208 Ross
Clovis, NM 88101
This letter will confiirm that as a result of the formal investigation
held on August 20,
1999
at Albuquerque, New Mexico, concerning
late reporting of personal injury that occurred on July 12,
1999 you
are issued a Level S suspension of 20 days for violation of rules 1.1,
Safety 1.2, and 1.6 Maintenance of Way operating rules. Ten (10)
days of the suspension will be deferred for a period of six months. If
you are involved in another incident requiring discipline during this
period, the deferred suspension will be activated along with any
discipline issued for that incident. Additionally, you have been
assigned a probation period of 1 year. If you commit another
serious rule violation during the tenure of this probation period, you
will be subject to dismissal.
Form 1 Award No. 36766
Page 5 Docket No. SG-36692
03-3-01-3-237
Your suspension will commence on September 27, 1999. Any
scheduled vacation, leave of absence, medical leave, or furlough
during this time will extend your suspension by the corresponding
number of days that fall within the suspension period. You will be
reinstated to service on October 9, 1999.
This letter will be placed in your personal file. You signing below
serves as receipt of this suspension.
Respectfully,
J.W. Williams
Director Signals
Kansas City, Kansas
Signature:
Date:10-6-99
cc-Jeff Parker-Local Chairman"
On March 29, 2000, the instant claim was filed. The claim was denied at all
levels and has been placed before the Board for final resolution.
The Board reviewed the record and studied the transcript of the Hearing. As
a result of that review, the Board is compelled to conclude that the Claimant did in
fact, violate the three Rules cited in the September 27, 1999 discipline letter. He did
not report an on-duty-injury when it occurred on July 12, 1999. He went to the
doctor on July 16, 1999 because his back hurt. At least at this point, the Claimant
should have reported the July 12 event to his Supervisor. On July 21, in a
conversation with his Supervisor, the Claimant mentioned that his back hurt and he
had been to the doctor concerning it on July 16, 1999. When asked if he was injured
on the job, he answered that he did not know. It is difficult to understand why, if
the Claimant had been injured on July 12, he did not know that this was the case
and why he did not report the injury at this point.
Form 1 Award No. 36766
Page 6 Docket No. SG-36692
03-3-01-3-237
The Board considered the procedural arguments presented by the
Organization. It does not find these arguments sufficlently persuasive to support
modification of the discipline assessed. Reporting on a timely basis of on-duty
personal injuries is a crucial issue in the railroad industry. While the Organization
protested the level of penalty imposed in this case, the Board can find no basis
within its authority to modify or reduce it.
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 29th day of December 2003.