Form 1 NATION NAL RAILROAD ADJUSTMENT BOARD



                                        0°®2-3;427

                                              43


The Third Division consisted 'of members and in addition Referee
 Steven . i eriwen award was rendered.

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:
                  (The Burlington Northern and Santa a RailwAy Company

                  (former Burlington Northern Railroad o pany)


.STATEMENT OF CL

      "Claim of the System Committee of the Brotherhood that:


      (1) The discipline [Level S suspension of twenty (20) ys

      beginning upon return to full duty) imposed upon r. . L.

      Lauenroth for alleged violation of Rule 1.6 and l1.2. in

      connection with alleged dishonest behavior and failure t

      provide factual information on September 13,1999 in rear t

      filing Employee Personal Injury y Report on February 28,

      200 s arbitrary, capricious, on the basis f unproven

      cares and in violation f the Agreement [System File -0-

          090-2/10-0-058 (MW) ].


      (2) s consequence f e violation referre to in Part (l) above,

          r. . L. Laueroth shall now avny mention of

          discipline removed from his personal -record and he shall a

          made hole for mosses ay have r ill suffer n

          account of this discipline."


FINDINGS:
      The Third Division f e Adjustment Board, o the e record all the.,

evidence, s that:
 Ford 1
 Page

 involved herein.

 Award 0.3726 ocket o. MW-37395
      0-3-0-3-427


The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and emptoYee within the meaning of the Railway Labor Act, as approved June 21,1934.


                      This Division of the Adjustment Board has Jjurisdiction over the dispute J


                      Parties to said dispute were given due notice of hearing thereon.


The Claimant established and holds seniority as a CDL Truck Driver. on the hump section at the oson Yard in Lincoln, Nebraska. At the time of the incident, e had 2 years of service with the Carrier.


ShortlY after the start of work on September 1; 1999, the Claimant felt tinglimn, pain and stiffness in his arm and shoulder. When the Claimant's immediate supervisr inquired about the cause of the Claimant's tingling, the Claimant indicated that he had slept on his arm "wrong." The Claimant was asked if his inJ°urY was work-related and a replied that it was not.


      The Claimant continued to work for the Carrier without restrictions until

t that time the Claimant presented a list of severe medical' restrictions o the Carrier that prevente the Claimant from performing the essential functions of his Truck Driver position. The Claimant provided oamster . denach with medical documentation follin each f his visits with is physician. The Claimant underwent an MRI on October 6, 1tat revealed a herniate disk t Cnd C7. n October 1 , 1 , the Claimant underwent surgery to alleviate his pain. n November , 1 , the Claimant's attorney advised Claims Representative J. Lando the Claim ant's allegati tat as injure while at work n September 13,1999.


February ' 2000, the Claimant cane osteedbcto inquire if the Claimant's atrneY had tame a personal inju report fro t Carrier. This was the Carrier's rst dire knowled a that the Claimant s assertin an, on'the-job in' The Claimant prepad inJ`Y re ort on

.jury. February , , claiming tat e s injure on the job.

 ctobe6,
 Form 1 r o. 3726
 Page 3 Docket No. MW-37395
 0®3--3-427

By letter dated February 28, 2000, the Claimant was directed to "Arrange t attend investigation in the Burlington Northern Santa Fe Railroad, Third Floor Conference Room, 201 North 7th Street, Lincoln, E, at 1000 hours Friday,-March 10, 2000, for the purpose of ascertaining the facts and determinin your responsibility, if any, in connection with your alleged dishonest behavior and failure to provide factual information on Monday, September 13,1999, and in regards to conversation and filing of Employee Personal Injury Report SF51662, (on) onday, February 2, 2000. Company's first notice Februa 2 , 2000."


In a letter to the Claimant dated April 0, 2000, Division Engineer T. . Koeiguer notified the Claimant s follows:


      "This letter will confirm that as a result of the Investigation afforded you on arch 2, 2000, you are issued a Level S Twenty (20) day Suspension, beginning hen you return to full duty for violation of Rule 1.(onct 4. Dishonest) and Rule 1.2.5 (Reporting) for dishonest behavior, and failure to provide factual information, as discovered durin the investigation afforded on arch 3, 2000."


The Organization claims that the discipline imposed upon the Claimant s unwarranted, harsh, and excessive. The Organization contends tat the burden f proof in 'a discipline matter such as this is* n the Carrier; that burden f proof has riot been met. The Organization claims that the Claimant attempted infor the Carrier that his injury was suffered on the job, but that the Carrier rebuffed this attempt. In addition, the Organization claims that the Investigation was not leted in a timely manner. The Organization argues that the Carrier as o notice as early as November 23, 1999 through the Claimant's counsel that the Claimant s injured while at work. According to the Organization, a Carrier should now be require to clear the Claimant's recor f any mention f e incident, to compensate i for all f his lost ages, including lost overtime and to e i hole for vacation, holidays, and seniority.

 Conversely, the Carrier takes the e position that it met its burden, of prooL.
 According to . the Carrier, it is clear that the Claimant. did not properly notify the
 arrier that he as injured while at work-. While Claimant come is
 For 1 Award o.37 6
 Page Docket o. -7
 04-3-02-3
 supervisor 427
 rebuffed him, the evidence adduced at the Investigation clearly shows that t o time prior to February 2000 did the Claimant indicate that he was injured on the job. While his counsel did send letter to a representative of the Carrier in November 1999, the Claimant did not follow proper notification procedures to alert his immediate supervisor until Februa 2000. According to the Carrier, a revie of the transcript developed during the Investigation leaves no doubt that the Claimant violated the applicable Rules.

 In discipline cases, the Board sits as an appellate forum. We o not weigh the evidence a novo. As such, our function is not to substitute our judgment for the Carrier's; nor to decide the matter in accord with what we might or might not have done had it been ours to determine, but to rule upon the question of whether there is substantial evidence to sustain finding of guilty. If the question is decided in the affirmative, we are not warranted in disturbing the penalty unless a can say it appears from the record that the Carrier's actions were unjust, unreasonable or arbitrary, o as to constitute n abuse of the Carrier's discretion. (See Second Division, ward 7325, Third Division Award 16166.)

 In the instant case, the Claimant is charged with not properly reporting n on-the-job injury. Rule 1.2.5 clearly provides that "A:11 cases of personal injury; while on du or on company property, must be immediately reported to the proper manager, and prescribed form completed."

 After a review of the evidence, the Board finds that there as substantial evidence in te record to sustain the Carrier's position that the Claimant i not

 promptly report is injury of September, 1, 1999. While it is true that representative f the Carrier did receive a letter fro the Claimant's counsel i
 ovember 1999, t Cli ant's reporting officer as not informeof the claim
 until February 2 , 2000. In the instant case, the Carrier as proven tat the
 Claimant en age in t violations alleged. See Public a oar o. 104, e
 . 6.

 in sum-- the -Board ndtt the discipline. imposed reasonable ill
 not disturb it.
 Form I Page

 and o. 37265.
 Docket. ®373
 - -02- -7

 A

 Claim denied.

 F

 This Board, after consideration of the dispute identified above, hereby orders that Award favorable to the Claimants) not be e.

 NATION L ADJUSTMENT y Order of Third Division

 ated at Chicago,

 llinois, this 5th day of November 2004.