The Carrier acted in an arbitrary and capricious manner when it assessed Machinist J. Holder a Level 2 discipline pursuant to Carrier's UPGRADE Discipline Policy for failure to promptly report a personal injury as required by Rule 1.2.5. It is requested that the Carrier remove the discipline from Claimant's personal record.
The Board after hearing upon,the whole record and all the evidence, finds that the parties herein are the Carrier and Employee, respectively, within the meaning of the Railway Labor Act, as amended; that this Board is duly constituted under Public Law 89-456 , and has jurisdiction over the parties and dispute involved herein; and that the parties vieie given due notice of the hearing thereon.- q
injured his ribs,jsi& and chest; inn February 4, 199'7, liercallegedly sustained"an'iiijuiy whet he hit his lieaii3 at a 'safety meeting; and on February 20; 1997, he allegedly re-injured his ribs. Claimant began filling,out. reports on February 28, 1997 for the May 17, 1996 injury and February 20, 1997-re-injury to his ribs, bin. before completing them, he told supervision he wanted to see a doctor. The Carrier released him to see his doctor, after which he was to return to the Car Repair Facility to complete these injury reports. However; the Claimant did not return to work that day. He returned his supervisor's call of March 1, 1997 the next day, during which he informed barn for the first time of the head injury he purportedly sustained on February 4, 1997. Claimant reported to work on March 3, 1997, and completed his report on the three injuries he allegedly suffered. Shortly thereafter, the Claimant left work because he "didn't feel good."
On March 6, 1997, the Carrier notified the Claimant to attend a fornmal investigation for purposes of ascertaining his innocence or guilt regarding the personal injury reports he submitted on March 3, 1997 alleging an on-duty injury on May 17, 1996, with a recurrence on February 20, 1997, and a personal injury on February 4, 1997, all of which indicated that he "acted in a careless and negligent manner." The notice of investigation her stated that the allegations stated therein, if proved, constitutes a violation of Rules 1.6.1, 1.6.2, 1.6.4, 1.1.3 and 1.2.5. An investigative hearing was held on March 14 and 19, 1997. Several weeks later, the Carrier, on April 8, 1997, informed the Claimant that the evidence adduced at the hearing established his failure to immediately report an on-duty injury which violated Rule 1.2.5. Pursuant to the Carrier's UPGRADE Discipline Policy, the Claimant was assessed a Level 2 discipline; i.e., a one-day alternate assignment with pay to develop a corrective action plan.
The Organization, on behalf of the Claimant, filed a claim appealing the Carrier's disciplinary action on procedural and substantive grounds. Although the Organization disputes the Claimant's discipline on the merits, asserting that he was subject to disparate treatment because of an established practice at the
PLB No. 6051 - 2 - Award No. 10Palestine Car Repair Fate which did require employees to report all injuries, its main complaints concerning the Carrier's action were procedural in nature. Specifically, the Organization maintains that the Carrier officer who charged the Claimant and then testified against him at the investigative hearing met with the conducting officer prior to the hearing, during which they shared and discussed documents that would be introduced into evidence. In this same vein, the Organization contends that they also discussed this case during periodic recesses of the hearing. Another procedural complaint of the Organization pertains to the notice of investigation which did not address the Claimant's so-called late reporting of an injury. Yet, the Organization submits, he was found guilty of failing to timely report his injuries on May 17, 1996 and February 4, 1997, despite the fact that the notice of investigation only alleged that his injury reports revealed he was careless and negligent and contained statements that were not factual. The Organization opines that if timeliness of these injury reports concerned the Carrier, it would have made reference to that concern in the notice of investigation. It is the Organization's position that since the Carrier failed to adequately apprise the Claimant that he was being charged with a violation of the reporting rule, it was improper to discipline him for an infraction that was never alleged.
On the basis of, these procedural flaws, the Organization holds to the view that the Claimant's discipline should be set.; aside. Alternatively, the Organization also beiieve~ that, on the merits, no discipline was warranted because the Carrier had knowledge of the Claimant's. injuries but never required him to officially report them:
The Carrieir,- arguing to the contrary,niaintains that-;the Clainiant:was afforded his due process rights and received a.faii;and impartial, hearing., :In:this regard;.the Cirri`rJisserts that the O ition's complaint alr ;the n f :,off g. Aot.aufficie~tty recise.is=imiiiatenal: ~Acco
In decrying any improper conduct between the Carrier officer who investigated the Claimant's late reporting and authorized the notice of investigation and the officer who held the hearing, the Carrier acknowledges that they had a brief "informational meeting" prior to the hearing but only for the purpose of identifying documents to be produced as evidence. From the Carrier's perspective, the fact that the Claimant was not disciplined for all the rule violations cited against him is added proof that the investigative process in this instance was fair and impartial. . .
As for the merits of the case, the Carrier submits that the evidence of record clearly demonstrates that the Claimant was aware of the injuries he sustained at the workplace and did not report them immediately to supervision or timely complete the required injury report. On this point, the Carrier dies that supervision at the Palestine Car Repair Facility ever dissuaded the Claimant, or any other employee, from filling out any personal injury report.
In sum, the Carrier considers the Claimant's failure to report his injuries in a timely manner to be a serious rule violation - especially in light of the lawsuit he subsequently brought against the railroad seeking damages for the injuries of May 17, 1996 and February 4, 1997, which were described as "permanent and severe." Because of the nature of the violation, the Carrier contends that he was properly assessed a Level 2 discipline consistent with its UPGRADE policy. Accordingly, the Carrier urges this Board to deny the instant claim in its entirety. PLB No. 6051 - 3 - Award No. 10
Here, the decision turns on the Orgallization's procedural complaints regarding an imprecise notice of investigation and the pre-investigative hearing between the Carrier officer charging the Claimant and the officer responsible for conducting the hearing. Although the notice of investigation cited Rule 1.2.5 as having been possibly violated by the Claimant, the notice contains no allegation relative to his failure to timely file a report on each injury he sustained on the days in question. Instead, this notice expressly indicated that the nature of the Carrier's inquiry involved the Claimant's carelessness and negligence resulting in these injuries. Moreover, the notice specifically indicated that the investigation would probe the Carrier's allegation that statements in his personal injury reports were not factual. The notice of investigation, however, mentioned neither explicitly nor impliedly that the personal injury reports at issue were untimely. In upholding this procedural complaint, the notice lacked specificity and must be considered flawed where the basis for the Claimant's discipline was solely predicated upon his filing untimely injury reports in violation of Rule 1.2.5.
Withoutithe treed to corisider'the .merits-of the ease;,the-Cariier's disciplinary: action*.agairist alts 3Clairnant will be set; aside and expunged from his personal record.