Form 1




                                        Docket o. - 7

                                        0®--


The Third Division consisted of the regular members and in addition Referee Peter . Meyers when award was rendered.

 TIE T DISPUTE: (

 STATEMENT F CLAIM:
(Brotherhood 'of Maintenance of Way Employes

 (BNSF Railway Company (former Burlington ( Northern Railroad Company)

 "Claim' of the System Committee of the Brotherhood that:

 1. The discipline (formal rein placed in personnel l
 imposed upon r. H. . Henderson on august 1, 21 for
 allege violation of Maintenance of Operating Rule 1.1.3
 i connection it allegedly failing to comply with instructions

 in reporting a personal injury f y 1, 2001 pile assigned
 s elder at Tola , Illinois was aritr , capricious, the
 basis of unproven charges and in violation f the grant
 [System File - - 4o-I1 e C-01-D040-5/10-01-0393-D(MW) BNR1.

 . s a consequence of a violation referred to art (1) ova,
    the discipline assessed r. . , . Henderson shall be removed

    fro his personal record and he shll a pas for any and all


loss of wages and/or benefits."

 I

 evidence, finds that:

 The Third d Division of the Adjustment Board, upon the whole record and all the

      e carrier carrier the employee or employees involved in this dispute

are respectively carrier and employee within the meaning of the Railway Labor Act,
 s rove June 2,1 .
 o1 o. 76
 Page ocet . -374
 0®_ ®_ 1
 This Division otdjustmenord has jurisdiction over the dispute
 involved herein. .

      Parties to said dispute were given due notice of hering thereon:


n r about ay 21, 2001, the Claimant was notile ttten formal
 Investigation t determine the Claimant's responsibility, if an, in connectionit
 his allege failure to coly with instructions when he faileo advise his
 ad aster that a allegedly had sustained personal inju on or about May 1 ,

 001, t Toland, Illinois. After o postponements, the Hearing. as conducted July 1, 2001. n August 1, 2001, the Claimant was notified that as a result f the
 Investigation, he had been found guilty as charged was bein assessed formal
 reprimand for violating Maintenance f y Operating Rule 1.1. . The
 nization thereafter file a claim, challengin a Carrier's ecisio t discipline
 the Claimant. The Carrier denie the claim.

 The Carrier initially contends that the instt claim is holly unsupported,
 n the discipline imposed as appropriate. The Carrier asserts that the Claimant
 certainly knew, after seeing a doctor on the evenin oy 17, 1, that his injury
 s sustained on ay 1, 2001, yet the Claimant failed to immediately report i
 injury. The Carrier points out tat the Claimant ha a pre-existing back condition,
 and a admitted ac was 'sore the point of weakness. The Carrier
 argues that ethese circumstances, the Claimant should have known, or
 suspected, tat he as injured.

 The Carrier emphasizes tat the Claimant did, in fact, suspect that something
 s wrong with his back n the morning f ay 17. The Claimant told Division
 uerintendent Dryea that he had taken a pain reliever that morning. The Carrier
 insists that the Claimant's excuse that e i not knew s injured is 1 .
 The Carrier argues that the Claimant knew his back was sore to the point of
 weakness, knew that is ca stiffene a while e he was driving, and he took a
 pain reliever n t morning of ay 17 before reportin to safe meeting. The
 Carrier maintains tat the Claimant i k but se not to co ply it t
 Rules.

      e Carrier the contends tat contrary t Organization's r en,

there is evidence f request r i under a Safe Incident Analysis
 Process i i t. Carrier of s , in addition, a Claimant
                                                    had

Form I .760
 Page 1 Docket No. MW-37486
 0_® ®3_61

 no right to a handled through .I.A.. because the Investigation root result fro

safe incident, but instead from the Claimant's failure to imeitelreort his injury. The Carrier insists that late reporting of injuries are not safety incidents.


The Carrier asserts that the sole defense raised by the Organization is that the Claimant allegedly filed personal injury report one day later, but the Carrier maintains that this is n admission that the Claimant failed to comply it Rule 1.1.3. 'the Carrier emphasizes that the Claimant testified that a sustaine n inju on ay 16, sought medical attention on the evening of a17, and did not notify his immediate supervisor until after the fact. The Claimant's testimony shows that a was aware of the roper procedure for reporting n injury.


      The Carrier oints out that the Organization s not denied that the

Claimant faile to comply it the ides, instead assertin that the ides are nair
 and that formal reprimand s not warranted. The Carrier emphasizes that the
 ell established is t"obey n n grieve lte."

 e Carrier ultimately contends that the instant clai im should be denied in its
 emir

      T Organization initially contends that the recor fails support the


rrier's charge against t Claimant. The record clearly establishes C Claimant's actions were prudent, thoughtful, an in compliance it Carrier r Rules..
 The Organization maintains that there is o evidence that the Claimant s re
 that he had sustaine personal inju until after a tamed medical attention
 urin the evening of ay 17. In light of the Claimant's testimony, the only
 conclusi that may be reached is that as soon as the Claimant bece aware that
 he s injured, he reporte his personal injury this supervisor and r tl

sub1ilitted the required written report. The Organization therefore argues that the Claimant i t violate Rule 1.1.3.


      The Organization asserts that is inconceivable that the Claimant could have


reported the injury before a actually did s. The Organization points out that number f Awards have held that not all injuries immediately manifest themselves,
 n that reporting such injuries he they are manifested is not untimely reporting.
 Moreover, there is no showing that the Claimant intended to disregard or otherwise
 avoid reporting suspected e Organization tams that the Carrier
 faile its r proof i this case.
 Form 1 r .7
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 The Organization then emphasizes that the Claimant s not dilato in n manner in contactin the Carrier s soon as has are that home diagnosed with back spass. The Organization points out that the Claimant could have waited ntil the following morning to avise the Carrier of his situation, but instead called the Carrier only minutes after returning home from the hospital the evenin of a17.

      The Organization insists that until a saw the doctor, the Claimantat

aware that he woul be advised to take a day off work to ret his back. The
 Organization points out that hno such recommendation been e, the Claimant
 would have reported for a n nothing would ave bee made the incident.
 The Organization argues that the Claimant exercise reasonable judgment in
 obtaining medical attention en it was necessa o 7, 1, during -
 rkours, n a contacted is su visr immediately on lei t e
 to ain off work the next ay. e Organization therefore asserts that t
 ,Claimant clearly complied with the Carrier's state ides.

 The Organization ultimately contes that the instant claim soul e sustained i its entirety.

    The parties being unable to resolve their dispute, this matter cefore the r.


      The oar reviewed t evidence an testimony an fin t t Carrier

faile teet its burden f proof that the Claimant violated Rule 1.1. i connection
 with the inju he sustained on u n ay 1, 2 1. The recor reveals tat n
 y , 21, the Claimant experienced after welding or a few ours
 in some lifting. His back stiffene a and he had to sto driving at one
 point that afternoon. ay 17, 20 1, the Claimant told is Superintendent tat
 he had ken aim reliever before attendin a safety meeting orni
 Subsequently that , the Claimant t went to see the doctor. When he returned
 from the doctor, he contacte the Carrier an informed the that t he was suffering
 fro be spasms. The recor reveals tat the Claimant had -existin c
 condition n dealt it back aim n a regular basis. t is clear tat the Claimant
 was of certai tat he had actually sstai a injury n the job until
      was se y is doctor tat there as some injury.

For 1

 Page

                                        r o. 37605

                                        Docket . - 7


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The Board recognizes the importance of the Carrier's Rules with respect to promptly reporting an injury. Given the facts in this case; it is clear that the Claimant promptly reported the inju as soon s a as aware that he heen injured. Although the Carrier argues that it is ": . . fir in its belief that the Claimant did know he as injured prior to receiving medical attention. . . ," the record does not support that "belief." The Claim ant reported injury t next day after it had been conr ed by his odor. a did not even wait ntil t

followin day but calle n the evening after he had returned fro the cto' office.


The artier bears the burden f proof in all discipline ceases In this case, the Board finds that the Carrier fade to meet its burden p proof. Therefore,the lei

ill be sustained d. and the formal reprimand will be removed from the Claimant's
 personnel file.

 AWARD
Claim sustained.

 E

      is Board, after consideration of the dispute identifled above, hereby orders

that an award favorable to t lei (s) a a artier is ordered t e
 the r effective on r rays following postmark t t A is
 to s itte to the parties.

 NATIONAL RAILROAD ADJUSTMENT BOARD
 r it Division

 to t i, Illinois, this n f.