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.
The Claimant was dismissed for late reporting of a personal injury and for failing to furnish a statement of the incident as instructed by his Track Maintenance Supervisor on July 19, 2006. At the time of the matters in question, the Claimant had some 17 years of unblemished service. In addition, he had never before su.stained a work-related personal injury.
The testimony of the Carrier's main witness and the Claimant was sharply confcting during the Investigation. The conflict created several issues of material fact which required a credibility assessment by the Conducting Officer to resolve the matters. However, no such assessment appears in the record. Indeed, the Carrier's disciplinary decision was made by a person who was not at the Investigation and, therefore, could not have been in a position to make a valid credibility assessment.
In addition to the lack of a proper basis for resolving credibility in the Carrier's favor, the record provides significant reasons to question the veracity of the Carrier's main witness. A brief review of the facts will illustrate.
The Claimant was operating a front-end loader on June 28, 2006 when he was called to assist in the correction of two sun kinks in Track 6 at Muskego Yard. The work required him to use his loader bucket to bump the buckled rail back into place so it could be secured. Because of cars on Tracks 5 and 7, he had to come at the kinks from an angle and rotate the loader clockwise to bump the rail. It is undisputed that this jostled him around sharply within the cab of his loader despite wearing his seat belt and all required safety equipment. Both locations required multiple bumping movements before the buckles could be corrected. The Claimant reported experiencing back pain and difficulty sleeping to his Foreman on July 3. His supervisor was on vacation until July 5. On July 5, the Claimant verbally
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Yet, as previously noted, the supervisor had been informed of the injury by both the Claimant and the crew Foreman not later than July 5, 2006. The supervisor did not acknowledge these facts until later in his testimony.
The issue about the Claimant failing to provide a written statement in addition to the written report he submitted on July 19, 2006 also produced an interesting colloquy in the supervisor's testimony. The additional information the supervisor wanted became a moving target. When initially asked what .additional information he wanted, he said he wanted more information about what happened. When it was pointed out that page three of the Claimant's injury report provided that information, the supervisor responded that he wanted information such as, "Temperature and all this and that." When it was pointed out to him that a temperature of 92 degrees was shown on page one of the report, the supervisor then changed to say he was looking for information about who was present. When it was pointed out to him that the names 'of two witnesses were listed on page three, the supervisor again changed the nature of his information request. At the end of this exchange, the supervisor finally settled on wanting to know information about working distances and which bucket the Claimant had on the loader. There is a significant problem with this. On page 17 of the Hearing transcript, the supervisor admits he never asked the Claimant for this type of information. Without being told what additional information the supervisor wanted, the record does not show how the Claimant could have known what was needed beyond what was already in the written report he had submitted. It appears, therefore, that the Claimant was entirely justifed in thinking he had already provided all pertinent information.
After careful review of the record before us, we are compelled to find that the Carrier did not satisfy its burden of proof to establish that the Claimant had violated Carrier Rules and instructions as alleged in the notice of charges. Accordingly, the claim must be sustained. The Claimant must be provided the remedy requested consistent with any limitations specified by the Agreement.
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.