On December 21, 2010, Claimant was notified that he had been found guilty as charged and was assessed a Level 3 discipline with a five day suspension.
It is the Organization's position that the Carrier failed to meet its required burden in this case. It asserted the Carrier was obligated to present substantial evidence that Claimant failed to properly report his on-the-job injury on August 2 or 3, 2010, pursuant to General Code of Operating Rule (GCOR) 1.2.5. It argued the record reflects that the Carrier failed to establish that Claimant knew he was injured on August 2 or 3, 2010. As such, the Carrier did not show that Claimant knowingly violated any Operating Rules and because of that it concluded by requesting that the discipline be rescinded and the claim sustained as presented.
It is the position of the Carrier that immediately following the derailment of Claimant's machine on August 2 and 3, 2010, the Claimant began to experience bodily pain. Claimant continued to work with pain until his vacation started on September 1 st. By September 7th, the pain became so bad that Claimant saw his physician. On September 9th, the physician diagnosed the Claimant's pain as a fractured vertebra and herniated disk. Claimant reported the injury and was counseled by his Supervisor Yoast, on the proper way to complete Carrier Form 52032 on September 24th. Claimant returned the completed form to Mr. Yoast on October I, 2010. From the time Claimant was injured in early August until the time Form 52032 was officially submitted, two months had past, therefore, according to the Carrier, Claimant violated Rule 1.2.5 and was appropriately assessed a Level 3 Suspension. It closed by asking that the discipline not be disturbed and the claim remain denied.
The Board has thoroughly reviewed the record and determined that the Claimant received a "fair and impartial" Hearing and was afforded his Agreement "due process rights", therefore, the dispute will be resolved on its merits.
Review of the Claimant's testimony and Carrier Form 52032 Report of Personal Injury or Occupational Illness made out by the Claimant and submitted during the Hearing indicates the Claimant allegedly suffered a back injury on either August 2 or 3, 2010, after multiple derailments occurred when he was operating his machine an Operating Tie Inserter. Claimant did not fill out Form 52032 until October 1, 2010, approximately two months after the alleged injury.
In its defense of the Claimant the Organization argued that the Claimant did not realize the severity of his injury until he visited his physician on September 7th. It further argued that Claimant did not file the injury report immediately after the accident because he thought the soreness in his lower back and legs was attributable to "old age". However, when he did fill out Form 52()32 nearly two months had passed and assuming for the sake of ardent he was not able to pinpoint the date of his injuries until September 'l, 2010, it took 24 days before he reported the "on duty" injury.
The Organization also suggested that the Claimant was not required to report the alleged injury while on vacation. The Carrier responded to that argument in pertinent part as follows:
The aforementioned Carrier's statement was not refuted nor has the Claimant offered a reasonable reason as to why it took 59 days to report his alleged on-duty injuries or why it took 24 days after visiting his doctor at which time he supposedly became aware that he had been injured on either August 2nd or 3rd. Substantial evidence was adduced at the Investigation that the Carrier met its burden of proof that Claimant was guilty as charged.
The only issue remaining is whether the discipline was appropriate. Review of the discipline reveals that it was in accordance with the Carrier's UPGRADE Discipline Policy, therefore, the Board finds and holds the discipline will not be set aside because it was not arbitrary, excessive or capricious. P.L.B. No. 6302
