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Award No. 104
Case No. 104
PUBLIC LAW BOARD NO. 7120
(BROTHERHOOD OF MAINTENANCE OF WAY
PARTIES TO DISPUTE: (EMPLOYES DIVISION
(CSX TRANSPORTATION, INC.
STATEMENT OF CHARGE:
By letter dated August 26, 2011, Roadmaster B. D. Bland notified J. E. Arrington
("the Claimant") to attend a formal Investigation to be held on September 6, 2011, at an
address in Florence, South Carolina,"to determine the facts and place your responsibility,
if any, in connection with information that I received on August 8, 2011 in connection
with a report that you made regarding an incident that occurred on August 3, 2011 at
approximately 0830 hours at Ivey's Towing and Garage parking lot in Garner, NC."
The letter continued that the Claimant was "charged with failure to properly perform the
responsibilities of your position, failure to timely notify supervision of seeking medical
attention for an on-duty injury, and possible violations of, but not limited to, CSXT
Operating Rules - General Rule A, General Regulation GR-2 and CSX Safe
Safety Rule GS-5." The Investigation was subsequently rescheduled to September 8,
2011.
FINDINGS:
that:
General
Public Law Board No. 7120, upon the whole record and all the evidence, fords
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.
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The Board has jurisdiction over the dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
The Claimant, J. E. Arrington, was hired by the Carrier on June 21, 2004. At the
time of the incident here involved he held the position of Machine Operator on Force
6F04, a team of seven persons plus a backhoe operator that performed various track jobs
such as building road crossings, putting in switch ties and cross ties, and cutting in
turnouts.
On August 3, 2011, Force 6F04 was installing switch ties on the Norlina
Subdivision near Raleigh, North Carolina. At the beginning of the day Claimant
Arrington went with the backhoe operator and the vehicle operator to get a dump truck
and its trailer out of the repair shop in Garner, North Carolina. Mr. Arrington was
directing the backhoe operator, Mr. Banks, with hand signals while Mr. Banks was
backing up the dump truck to couple with the trailer. There was a difference of about
three inches between the trailer hitch and the ring on the dump track, and Mr. Arrington
saw that they were not going to match up. He then went to the trailer and started turning
the handle on the trailer jack with his left hand to adjust for the couple. While turning the
handle he felt a sharp pain and pop in his left shoulder.
Mr. Arrington rode back to the job site with the vehicle operator. Four witnesses
gave testimony as to what happened then. Ralph Allison, Jr., foreman of Force 6F04
since September, 2009, testified that when the employees came back to the site Mr.
Arrington said, "I need to talk to you about something." The two men walked to the side,
and Mr. Arrington told Mr. Allison that he felt a pain or a twitch in his left shoulder. Mr.
Allison described the ensuing conversation between them as follows:
I asked him did he want to go to the doctor; and wanted me to call the roadmaster
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to take him to the doctor and have it checked out. He told me no, he didn't want to
get the roadmaster involved and he didn't want to go to the doctor at that time.
He'd work and see how would it, I guess pan out the rest of the day[.] I told him, I
said, well I have to do something. So, that's when I wrote a statement and me and
him, he read it and then it [sic he?] signed it. (Tr. 26).
He asked him several times throughout that day did he want to go to the doctor, Mr.
Allison testified. Mr. Arrington did not request medical attention any time that day or the
next day, Thursday, which was the last workday of his Monday - Thursday workweek.
On Sunday afternoon, August 7, 2011, Mr. Allison testified, Mr. Arrington sent
him a text message that he had a doctor's appointment the next day, Monday, August 8 to
have his shoulder checked out. He also stated that he couldn't get to see the doctor on
Friday, and they gave him an appointment for Monday. Mr. Allison did not notify the
Roadmaster or any manager that day of the message received from Mr. Arrington on
Sunday. About 11:30 Monday morning Mr. Arrington called Mr. Allison and said that
the doctor had taken him out of service and thought that he had torn his rotator cuff. Mr.
Allison called Roadmaster Bland and notified him about the Claimant's on-duty injury
and medical treatment.
On cross-examination Mr. Allison testified that since he has been foreman, Mr.
Arrington was the first employee under him to have been hurt on the job. When Mr.
Arrington told him of the injury, Mr. Allison stated, he was going to call Roadmaster
Bland, "but . . . Mr. Arrington told me he didn't want to get the roadmaster involved,
because he would be to the doctor and out of service and he couldn't afford to miss no
time out of work." Mr. Allison was asked whether Mr. Arrington's statement to him
relieved him as foreman of the gang of the responsibility to refer the injury to Roadmaster
Bland. He answered, "Well, when, by him stating to me that he didn't want no medical
attention and didn't want the roadmaster involved; at that particular time I felt that it
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relieved me." (Tr. 28).
The Organization representative followed up with the question, "Looking back
now if the same incident occurred on August
3`d,
would you handle it the same way?" He
stated, "I would handle it different because we wouldn't be sitting in here now."
Mr. Allison expressed the opinion that it was proper for Mr. Arrington to report his
injury to him rather than Roadmaster Bland.
". . . [H]e
(Arrington) didn't know who
Roadmaster Bland was," Mr. Allison stated. "I hardly really knew [who] he was myself
at that time." (Tr. 29). He had Roadmaster Bland's and Assistant Roadmaster Small's
cell phone numbers, Mr. Allison testified.
The second witness to testify about what happened when Claimant Arrington
returned to the job site from retrieving the dump truck and trailer was Assistant Foreman
Chris Gable. He stated that Mr. Arrington "got out the vehicle . . . and walked up to us
where we were working on the switch and that's when he asked Foreman R. J. Allison to
come to the side of the truck or the front, I'm not exactly sure where they stopped at to
talk, but he needed to talk with him." He did not hear the conversation, Mr. Gable
testified.
About 15 or 20 minutes later, Mr. Gable stated, they came back from the truck and
Mr. Arrington said that he needed to talk to Mr. Gable. He told Mr. Gable that he hurt his
shoulder when they were at the shop. According to Mr. Gable, he asked Mr. Arrington if
he was all right, and Mr. Arrington said that he and Mr. Allison had talked, and he
(Arrington) had filled out a statement; that he wanted the statement to be filled out to
have everything in place because he had been hurt before, and if anything came out of it,
he wanted to have the things in place to be able to call the doctor. Mr. Arrington told Mr.
Gable that he said on the statement that he refused medical attention, he didn't want the
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Roadmaster to take him to the emergency room; that he wanted to see how it was going to
be. Mr. Arrington, Mr. Gable testified, did not say that he did not want the Roadmaster or
supervisor to know about the incident.
Mr. Gable testified that he thinks that once Mr. Arrington notified Foreman
Allison of the injury or incident that occurred, Mr. Allison was responsible to notify
supervision. Prior to the incident, Mr. Gable stated, they were not in contact with
Roadmaster Bland. The Monday after the incident Roadmaster Bland and his boss came
to the team's work site. Mr. Gable expressed the opinion that Mr. Arrington complied
with the rules by reporting the injury to Foreman Allison. In reply to questions by the
conducting officer, Mr. Gable testified the when there is an on-duty injury an incident
form has to be filled out the same day and that a written statement is not the same as an
incident report.
The third witness to testify about Mr. Arrington's report of the injury to Foreman
Allison was Assistant Foreman on Force 61`04 Travis Hackler. "I was standing at the
back of the truck," Mr. Hackler stated, "when he (Arrington) called Mr. Allison over
to talk to him about it." Mr. Hackler described the conversation as follows:
He told him that he was helping Mr. Banks load his trailer, he's on, when he was
moving the trailer jack up or down that he had popped and it was a little sore and
he was wanting to report it to him in case it got worst [sic and Mr. Allison asked
him if want to call the roadmaster and take him to the hospital and he told him he
didn't need any medical attention, he just wanted to report it to him to, in case
something did happen, that he went through the right steps to report it. (Tr. 54).
Asked by the Organization representative if it would be reasonable for Mr. Arrington to
report the injury to Track Foreman Allison and he, in turn, be required to contact
supervision, Mr. Hackler stated, "Yes, that's the way I've understood for us to do it."
The first time he met Roadmaster Bland, Mr. Hackler testified, was the Tuesday after the
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incident when Mr. Bland came out and talked to them about taking pictures and
reenactment.
The fourth witness to testify about report of the injury to Foreman Allison was
Claimant Arrington. He stated that he told Mr. Allison that he wanted "the necessary
steps to be taken, so if I had to seek medical attention in the future that they will be no
questions and there would be no confusion.°" To a question from the conducting officer,
Mr. Arrington acknowledged that he did not fill out a PI-lA Employee's Injury And/Or
Illness Report or tell Foreman Allison that he needed to fill out the report.
The statement which Mr. Arrington signed for Foreman Allison was introduced
into evidence as Carrier Exhibit 16. It stated as follows:
$-3-11 9:50 AM J. E. Arrington felt pain in his left shoulder. He said he didn't
want to go to the doctor he was helping the backhoe operator
load his machine when he felt it the pain.
/s/ J. E. Arrington
Mr. Arrington testified as follows regarding his signing of the statement:
Mr. Allison went into the truck and wrote this statement which is Exhibit 16 and
called me to sign it and I read over it and I asked - he asked me before I signed it
if I wanted a roadmaster to come and pick me up and take me to the emergency
room and I told him no sir, I don't want to seek emergency attention, I don't want
to seek medical attention at the time and he said okay, well sign this statement, so I
signed it because it was a brief statement of what had happened and after signing
the statement I said, is that it, do I go back to work and Mr. Allison, yes sir you can
go on back to work, so I went back to work. Jr. 59).
Mr. Arrington testified that he worked his full shift on August 4, 2011. He worked the
jack rail to remove tie plates, he stated, and strung out the spikes for the team, laid them
on the ground, got them ready. Other than that he did not do much, he stated, "because I
was favoring my arm pretty heavy."
The conducting officer asked Claimant Arrington, "Did you operate the spike
driver as Mr. Allison had stated earlier?" Mr. Arrington answered, "No sir." Jr. 59).
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In reply to a question by the conducting officer, Foreman Allison had testified earlier that
on August 4, 2011, "He (Mr. Arrington) ran the jackhammer basically most of that day."
(Tr. 26). Mr. Allison explained that the jackhammer is the "Matweld hammer" that drives
spikes. Foreman Allison was later recalled to testify by the conducting officer who asked,
"What activity did he (Arrington) perform on August 4, 201 I?" He testified, "On August
4, 2011 he strung out some spikes and he ran the jack hammer a little bit." The
conducting officer asked, "Anything else he worked on that day?" Foreman Allison
stated, "I don't recall him pulling those spikes with no pull bar, nothing like that." (Tr.
66).
Mr. Arrington testified that Thursday night he drove approximately 300 miles to
his home in Georgia. Asked by the conducting officer, "You didn't have any difficulty
driving with your shoulder condition?", he answered, "Yes sir, I did." The conducting
officer asked the Claimant if he at any time reported to Roadmaster Bland or Assistant
Roadmaster Small that he was seeking medical attention for an incident that occurred on
August 3, 2011. He stated, "No sir, I had no idea who either of these people were at this
time." He had never seen either of them, he stated, and had no contact information for
either of them. In reply to the conducting officer's query, he testified that he assumes that
he could have gotten the contact information from Foreman Allison.
Earlier in the hearing a Carrier witness had identified a Form P I-IA that Mr.
Arrington had filled out for an injury received on July 5, 2008, when he was stung in the
right arm by an insect while setting plates on track. The form gave the name M. H.
Burton as the "name of supervisor notified." Referring to the 2008 incident, the
conducting officer asked Mr. Arringon if he reported it to his supervisor. He answered,
"No sir." The conducting officer followed up, "Was M. H. Burton your supervisor?" Mr.
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Arrington replied that "he was the supervisor, yes sir but that's not who I reported my
injury to." Questioned by the conducting officer, "Who did you report the injury to?",
Mr. Arrington testified, "I reported the injury directly to my foreman." He (Arrington)
filled out the Form PI-lA the day of the occurrence, Mr. Arrington stated.
In responding to questions from his Organization representative, Mr. Arrington
testified that if Mr. Allison had provided him a P I-lA form, he would have filled it out.
Similarly, he stated, he would have had "no problem" if Mr. Allison had told him that it
was necessary for him to contact Roadmaster Bland. When he signed the statement, Mr.
Arrington testified, he thought that Mr. Arrington had contacted Mr. Bland. It is "not
correct" that he did not want the Roadmaster to know about his injury, Mr. Arrington
stated. What is correct, Mr. Arrington testified, is that he did not want medical attention.
When he had his injury in 200$, Mr. Arrington testified, he notified his foreman of the
injury, and it was the foreman who notified Mr. Burton.
General Safety Rule GS-5. Reporting Injuries or Incidents provides as follows:
A. On Duty Injuries
Any employee experiencing an on-duty injury must report the injury
to a supervisor at the time of the occurrence prior to leaving the
property on the day of the occurrence so that prompt medical
treatment may be provided. A form PI-P I A must be completed by
the employee reporting the injury.
B. Medical Attention
Employees must immediately notify their supervisor of the decision
to seek medical attention as a result of any on-duty injury. This
requirement is intended to facilitate work coverage and timely
regulatory reporting.
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D. Information concerning injuries
Employees with knowledge or information concerning an injury or
accident to themselves, another or non-employee must report the
information to their supervisor at the time of the occurrence so that
emergency assistance and proper medical care can be promptly
provided.
E. All incidents
Employees must immediately report to the train dispatcher or
supervisor all incidents involving equipment and any other incident
involving loss or damage to CSX property.
Mr. Arrington testified that he did not feel that he violated any of the rules listed in
the charge letter. He completed his testimony with the following statement:
I notified, I feet I did correctly. I notified the employee in charge immediately
after my injury. I didn't try to hide anything from anybody. Directly after
notifying the foreman who is . . . immediately over my gang I then double checked
my, trying to cover myself, I double checked and went to the assistant foreman and
notified him also. I didn't try to hide injury. I had no way of contacting the
roadmaster or assistant roadmaster. And I left that to my foreman to do so because
he was only one that I knew of on our gang, the 61`04 that had the proper numbers
and information to contact them. I thought he had contacted the roadmaster simply
because he had me sign the statement for the exhibit 16, he asked me if I wanted
the roadmaster to come and pick me up and take me to the emergency room, and I
told him, "No." At that point I thought he had already talked to him and asked him
if he needed to come out or not. So at that point I'm think the RJ, Mr. Allison had
already talked to the roadmaster and was finding out whether I needed to go to the
emergency room or not. And when my foreman told I should just go back to work,
after signing this statement, that's what I did, I returned back to work and I kept
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him posted over the next two days of how my arm was feeling. Jr. 65).
The Organization representative asked Foreman Allison whether he would do
anything differently today than he did on August 3`d. He answered, "The only thing I
would have did differently, instead of, I would probably should have, I would have called
someone up higher up than I was and that's the only thing I would have did differently."
(T r. 69).
In a closing statement in behalf of the Claimant the Organization asserts that the
charge letter was vague and seemed to suggest that Mr. Arrington did not report that he
had injured himself on the job. The evidence shows, however, the Organization argues,
that he reported the injury both to his foreman, R. J. Allison, and to the assistant foreman,
Chris Gable. Mr. Arrington did not require medical attention at the time the injury
occurred on August 3, 2011, the Organization asserts, but agreed that if he did, he would
notify Foreman Allison as required by the CSX Operating Rules.
When Mr. Arrington did require medical treatment, the Organization argues, he
notified Foreman Allison before going to the doctor and also reported to Mr. Allison what
the doctor said after the visit. With regard to Mr. Arrington's injury in 2008, the
Organization asserts, he also reported the injury to his foreman who, in turn, contacted the
supervisor, Mr. Burton. The Organization points to Foreman Allison's testimony that if
he had it to do all over, he would have contacted his supervisor on August 3, 2011. The
Organization also notes the testimony of other members of the Claimant's team that if
they were injured, they would notify their foreman. The Organization also refers to the
testimony of both the Claimant and his team members that they had never met
Roadmaster Bland.
The Organization contends that there has been no testimony that supports the
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Carrier's decision to charge Mr. Arrington and that "certainly no testimony has been
provided to support the decision to discipline Mr. Arrington whatsoever, even though he
had been withheld from service pending the results of this investigation." The Carrier,
the Organization argues, has not met its burden of proving the charges against Mr.
Arringon. The Organization requests that all references to any charges be removed from
Mr. Arrington's record; that he be placed back into service immediately; and that he be
made whole for any lost wages and benefits.
Following the close of hearing, by letter dated September 26, 2011, the Division
Engineer notified Mr. Arrington that a thorough review of the transcript and exhibits
demonstrated that he and his representative were allowed to present any witnesses and
cross-examine all Carrier witnesses and to present testimony and documents on his behalf
in accordance with his contractual due process rights. "Based on the evidence presented
at the investigation," the Division Engineer concluded, "it is my decision that the
discipline to be assessed is 30 days actual suspension, beginning September 2, 2011 up to
including September 30, 201 l."
The Carrier contends that the Claimant was afforded a fair and impartial
investigation in accordance with the controlling Agreement. This Board, the Carrier
asserts, has ruled that it has no obligation to provide documents in advance of hearing.
There was no error, the Carrier contends, to permit the introduction into evidence of the
Claimant's prior injury report form since it "was introduced to rebut the Claimant's
statement that he did not know the injury reporting process." The document, the Carrier
asserts, "showed the Claimant had properly reported an injury in the past, and knew the
procedure."
On the merits the Carrier argues that it produced substantial, probative evidence
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that the Claimant violated General Rules A, General Regulation GR-2, and General
Safety Rule GS-5. The record, the Carrier contends, "demonstrates the Claimant knew
the proper reporting procedure following an on-duty injury, and willfully failed to follow
this procedure." The Claimant, the Carrier asserts, violated General Safety Rule GS-5 A
by failing to fill out a form Pl-lA, which is specifically required to be filled out by
paragraph A of Rule GS-5. Moreover, the Carrier argues, the Claimant was fully aware
of his obligation to fill out that form since he had filled out that same form for a previous
injury.
The Claimant violated paragraph B of Rule GS-5, the Carrier contends, by failing
to notify his supervisor on Friday, August 5 of his decision to seek medical treatment.
The Claimant notes the Claimant's testimony that he called his doctor to make an
appointment on Friday, August 5, but could not be seen until Monday, August 8.
Notifying his foreman that he was going to be off work to have his shoulder checked out
was not compliance with the rule, the Carrier argues, because the foreman is not the
proper supervisor to report injuries to under Rule GS-5.
Even if the foreman were the proper supervisor, the Carrier asserts, the Claimant
violated the rule because he waited two days after deciding to seek medical treatment to
notify his foreman of his decision to do so. The Claimant violated Rule GR-2, the Carrier
contends, "by being dishonest and willfully neglecting his duty." This is so, according to
the Carrier, because "the Claimant knew the proper reporting procedure for an on-duty
injury, and had a duty to follow the Carrier's procedures . . . ." Further, the Carrier
maintains, "the Claimant actively persuaded his Foreman not to report the injury to the
proper authorities. (Tr. p. 26). The Claimant," the Carrier reasons, "was attempting to
gain the cover provided by reporting an injury, without actually reporting the injury."
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The Carrier characterizes the Claimant's conduct as an "act of subterfuge" and "a form of
dishonesty which prohibited the Carrier from timely investigating the root cause of the
injury, in the interest of safety."
The discipline assessed, the Carrier asserts, was appropriate and fully justified. It
notes that under the Carrier's IDPAP, dishonesty and the late reporting of a personal
injury are Major Offenses for which an employee may be dismissed for a single
occurrence. The Claimant committed both offenses, the Carrier argues, "by failing to
properly report an on-duty injury, and then attempt to hide behind his inadequate
reporting as a defense to these charges." The Carrier requests the Board to deny the
claim.
In this case, as in PLB No. 7120, Award No. 100, the Claimant was charged with
violations of more than one rule or regulation. Instead of making a specific finding of
whether the Claimant was guilty of violating any particular rule or regulation and, if so, of
which, the Division Engineer merely stated that the Claimant's contractual due process
rights were observed, all objections were properly addressed in the course of the hearing,
and that based on the evidence presented in the investigation, he was assessing an actual
suspension, which in this case was 30 days.
In Award No. 100, this Board stated, "Neither the Claimant, the Organization, or
the Board should be put in the position of having to guess what exactly the decision of the
Carrier was in a particular case with regard to the charges against the Claimant." That
same observation applies in this case also. In its submission the Carrier argues here, for
example, that Claimant Arrington violated General Regulations GR-2 in that he was
dishonest and willfully neglectful. Dishonesty is covered by item 4 of General
Regulations GR-2 and willful neglect, by item 5 of GR-2.
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Nowhere in the decision letter, however, is there any finding or ruling that the
Claimant violated GR-2 or that he willfully neglected his duty or that he was dishonest.
This Board has carefully perused the record and concludes that there is no substantial
evidence in the record of dishonesty or willful neglect of duty. The dishonesty, according
to the Carrier, was that Mr. Arrington "actively persuaded his Foreman not to report the
injury to the proper authorities (Tr. p. 26)" and "was attempting to gain the cover
provided by reporting an injury, without actually reporting the injury." The Carrier states
that "[t]his act of subterfuge was a form of dishonesty which prohibited the Carrier from
timely investigating the root cause of the injury, in the interest of safety."
The Board does not agree that the evidence establishes that the Claimant actively
persuaded his foreman not to report the injury to the proper authorities. Page 26 of the
transcript contains Foreman Allison's testimony that he asked Mr. Arrington if he
(Arrington) wanted him (Allison) to call the Roadmaster to take Arrington to the doctor to
have his injury checked out, and that Mr. Arrington said no, that "he didn't want to get
the Roadmaster involved and he didn't want to go to the doctor at that time." Mr.
Arrington, Mr. Allison testified, wanted to work and see how the injury panned out the
rest of the day.
The Board finds no "active persuasion," as contended by the Carrier, for Foreman
Allison not to report the injury to the Roadmaster. The most reasonable interpretation of
Mr. Allison's testimony on page 26 of the transcript, when read together with the
statement prepared contemporaneously by Mr. Allison, is that Mr. Arrington did not want
the Roadmaster to take him to the hospital. That statement, written in Mr. Allison's
hand, stated:
J. E. Arrington felt a pain in his left shoulder
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he said he didn't want to go to the doctor he was
helping the backhoe operator load his machine
when he felt it the pain
There is absolutely no suggestion in the statement that Mr. Allison wrote for Mr.
Arrington's signature that Mr. Arrington did not want Mr. Allison to report the injury to
the Roadmaster.
The testimony of Mr. Hackler, who heard the entire conversation and was a
disinterested witness, is consistent with the written statement prepared by Mr. Allison and
not Mr. Allison's oral testimony at the hearing. According to Mr. Hackler's testimony,
Mr. Arrington did not say that he didn't want to get the Roadmaster involved. Thus Mr.
Hackler testified that "Mr. Allison asked him if want to call the roadmaster and take him
to the hospital and he told him he didn't need any medical attention, he just wanted to
report it to him to, in case something did happen, that he went through the right steps to
report it." Jr. 54).
Claimant Arrington testified credibly that he thought that Mr. Allison had already
reported the incident to the Roadmaster Jr. 64, 65). Mr. Arrington explained that after
he told Foreman Allison about his injury Mr. Allison went into the truck and wrote the
statement Jr. 59). Mr. Allison did not deny that testimony, and it is plausible because it
makes more sense that he would write a statement sitting down in the privacy of his truck
than standing up in conversation with another person. It is also more probable that he
would have the paper for writing the statement in the truck than on his person. While
alone in the truck there was nothing to prevent Mr. Allison from calling the Roadmaster
to report the injury.
According to the Claimant's testimony, after writing the statement in the truck, Mr.
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Allison called him over to sign it and asked him before he signed it if he wanted the
Roadmaster to come and pick him up and take him to the emergency room. (Tr. 59). At
that point, Mr. Arrington explained, he thought that Mr. Allison had already spoken to the
Roadmaster, who had asked Mr. Allison if he (the Roadmaster) had to come out to take
him (Arrington) to the emergency room. Jr. 65). The fact that immediately after
returning from the truck Mr. Allison asked Mr. Arrington if he wanted the Roadmaster to
take him to the hospital was a reasonable basis for Mr. Arrington to believe that Mr.
Allison had just finished talking to the Roadmaster who wanted to know if Mr. Arrington
wished to go to the hospital. Mr. Arrington, according to his testimony, told Mr. Allison,
no, that he did not want to be taken to the emergency room.
According to the testimonies of both the Claimant and Mr. Hackler, there was
nothing in the conversation between the Claimant and Mr. Allison that could reasonably
be interpreted as an effort by the Claimant to persuade or even influence Mr. Allison not
to report the incident to the Roadmaster. It should also be noted that the record shows
that Mr. Allison was not careful to be absolutely accurate regarding the facts stated in his
testimony. The Board does not believe that there was an intentional effort on Mr.
Allison's part to prevaricate but that nevertheless he was not sufficiently attentive to
make sure that the testimony he gave was completely accurate.
Thus, Mr. Allison's testimony on a material point shows his lack of accuracy. The
question of the tasks performed by Mr. Arrington at work the day after his reported injury
is a material factual issue in the case because it bears on whether he really injured his
shoulder on August 3, 2011, as he reported to his foreman and the assistant foreman. On
direct examination the conducting officer asked Mr. Allison what kind of work Mr.
Arrington did on Thursday, August 4, 2011. He answered, "He ran the jackhammer
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basically most of that day." The conducting officer than asked, "And what type of task is
that.?" Mr. Allison explained, "That's Matweld hammer; that's drives spikes." (Tr. 26).
The conducting officer also asked Claimant Arrington what work he performed on
August 4, 2011. Mr. Arrington described the work that he did, noting that he was
favoring his injured arm. The conducting officer then asked, "Did you operate the spike
drive as Mr. Allison had stated earlier?" Contradicting Mr. Allison, Mr. Arrington
answered, "No sir." The conducting officer was obviously interested in whether the
Claimant was truly injured because he followed up with a question whether the Claimant
had any difficulty driving the 300 miles to his home Thursday night with his shoulder
condition. The Claimant testified that he did have difficulty.
Later in the hearing the conducting officer recalled Mr. Allison to testify. First he
asked Mr. Allison what work Mr. Arrington performed on August 3, 2011. After Mr.
Allison answered, the conducting officer asked, "What activity did he perform on August
4, 2011." Contradicting his earlier testimony that Mr. Arrington had run the jackhammer
most of that day, Mr. Allison stated, "On August 4, 2011 he strung out some spikes and
he ran the jackhammer a little bit." (Tr. 66). This Board has not noticed any selfcontradictory testimony on the part of Claimant Arrington in this proceeding.
The Board finds that the Carrier has failed to prove by substantial evidence that
Claimant Arrington violated General Regulation GR-2 in that he was dishonest.
With regard to the other alleged Major Offense on the Claimant's part, the record
shows that the understanding of the Claimant, Foreman Allison, and the other team
members was that in case of injury, the injury was to be reported to Foreman Allison.
Foreman Allison, who has worked on the railroad 37 years, testified that during the time
that he was a machine operator or a trackman, if someone got hurt, the injured employee
PLB NO. 7120
Page 18 Award No. 104
Case No. 104
would notify the foreman or the assistant foreman. (Tr. 28). In the present case, he
testified, it was proper for Mr. Arrington to report his injury to him (Foreman Allison).
(Tr. 29). Force 6F04 Assistant Foreman Chris Gable testified that Mr. Arrington acted
properly and complied with the rules in regard to an injury when he notified Track
Foreman Allison of his injury. (Tr. 50).
Travis Hackler, another assistant foreman on the 6F04 gang, testified that "the
way I `ve understood for us to do it" is for Mr. Arrington to report an injury that he had to
Foreman Allison and for Foreman Allison in turn to be required to contact supervision
Jr. 54). Richard L. Banks, the backhoe operator who worked with force 6F04, testified,
"If I got injured I'd inform my foreman." (Tr. 47).
In PLB 7120, Award No. 98, the applicable rule required that an employee who
wished to leave work early notify his supervisor. The claimant left work early without
notifying his supervisor and was disciplined. The determinative issue in the case was
who was supposed to notify the supervisor. When asked that question by the conducting
officer, the supervisor answered, "Either the foreman or [the claimant] himself." Id. at
page 8.
In PLB No. 7120, Award No. 10 the claimant, a foreman, was charged with
violation of General Safety Rule GS-5 E by failing to report a damaged switch to his
supervisor. In upholding the discipline, this Board stated, "As the Foreman of his team,
the Claimant had the primary responsibility to report any damage that he personally, or
any member of his team, caused to company equipment." Id. at page 11. The Board also
stated in the same case, "The Claimant's failure to notify his supervisor of the damage to
the switch so that an appropriate investigation could be started was a violation of
accepted procedure at the Carrier." Id. at page 12.
PLB NO. 7120
Page 19 Award No. 104
Case No. 104
In the present case Claimant Arrington acted in accordance with the prevailing
understanding of his team that an injury was to be reported to the foreman, who had the
primary responsibility of notifying supervision of the reported injury. Foreman Allison,
in effect, acknowledged that he had this responsibility when he testified that if the matter
came up today, the thing that he would have done differently is "I would have called
someone up higher up that I was." (Tr. 69). In the Board's opinion Claimant Arrington
substantially complied with General Safety Rule GS-5.
In another set of circumstances it might well be reasonable to expect an employee
to give direct notification to his supervisor rather than his foreman. For example, that
might apply in a situation where the employee and the supervisor are in direct contact on
a daily basis. But that was not the case here. Claimant Arrington had no contact with
either the Roadmaster or the Assistant Roadmaster in the performance of his regular
duties and responsibilities. Roadmaster Bland testified that he had never met Mr.
Arrington (Tr. l6). Assistant Roadmaster Small testified that Mr. Arrington received his
day-to-day instructions from Mr. Allison. (Tr. 22). Foreman Allison testified that he did
not think that Assistant Roadmaster Small was around on the day of the injury, "I didn't
see him none during that time," he testified (Tr. 31). Claimant Arrington testified that he
did not have either the Roadmaster's or the Assistant Roadmaster's phone number and
that he had never met either of the two (Tr. 5$). Although Mr. Small testified that he met
Mr. Arrington "[t]he first day that the tie teams was on the Aberdeen Subdivision," (Tr.
21), he gave no testimony that he had any work-related interchange with Mr. Arrington.
Rather, as noted, he testified that Mr. Arrington received his day-to-day instructions from
Foreman Allison. In the circumstances of the present case, the Board finds, it was proper
for Mr. Arrington to report his on-duty injury to Foreman Allison and to expect the
PLB NO. 7120
Page 20 Award No. 104
Case No. 104
foreman, as the primary person in charge, to make the appropriate notification to
supervision.
The problem was that there was a breakdown in the reporting and notification
procedure when Foreman Allison failed to notify the Roadmaster or Assistant Roadmaster
of the injury reported to him by Mr. Arrington. Mr. Arrington cannot be blamed for that.
With regard to notifying his supervisor of his decision to seek medical attention, the
Board is of the opinion that Mr. Arrington substantially complied with Rule GS-5 B when
he notifed Foreman Allison of his decision to seek medical attention the day before his
appointment with the doctor.
Rule GS-5 B states in the second sentence, "This requirement [to immediately
notify their supervisor of the decision to seek medical attention] is intended to facilitate
work coverage and timely regulatory reporting." No evidence was presented that one
day's notice would not have been sufficient to protect the Carrier's interests with regard
to work coverage and regulatory reporting. In addition, here again, the foreman failed in
his responsibility when he neglected to notify the Roadmaster or the Assistant
Roadmaster until the next day of the Claimant's decision to seek medical attention for his
injury.
With regard to Form PI-IA, there is no evidence that for his prior injury, which
occurred more than three years before the present injury, Mr. Arrington requested the
form and then filled it out. In this Board's experience it is the supervisor who normally
makes the employee aware of the need to complete the form and who provides the form.
See, for example, Award No. 99 at page 3, where it was the Roadmaster who had the
claimant complete the Form PI-IA.
The totality of the evidence in this case shows that the Claimant made a good faith
Page 21
NO. 7120
Award No. 104
Case No. 104
effort to comply with General Safety Rule GS-5. He reported the injury to his foreman
immediately following the occurrence. The record establishes that he and the other team
members understood that this was the way that injuries should be reported. There is no
evidence that any supervisor or manager had ever told the Claimant or anyone else an
Foreman Allison's team anything to the contrary. The Claimant notified his foreman a
day before the appointment of his intention to seek medical attention for his an-duty
injury. He notified his foreman of the doctor's diagnosis shortly after seeing the doctor.
This Board finds, consistent with its finding in PLB No. 7120, Award No. 10, that
Foreman Allison, once notified by Mr. Arrington of his an-duty injury, as foreman of the
team, had the primary responsibility to report the incident to the Roadmaster or the
Assistant Roadmaster. There is no substantial evidence that Mr. Arrington in any way
persuaded or induced him not to report the injury. It was the foreman's failure to provide
timely notification to a supervisor of the Claimant's on-duty injury that was the proximate
cause of a late completion of Form PI-lA in this case.
Since the Claimant reported his injury in a timely manner and was not dishonest,
there was no basis far removing him from service. Nor has the Carrier proved by
substantial evidence that the Claimant was guilty of any of the charges alleged against
him. The Board concludes therefore that the Claimant is entitled to be made whale far all
last wages and benefits as a result of his removal from service and the disciplinary
suspension assessed against him. No back pay is due far the period of time when the
Claimant was unable to work because of his shoulder injury. In accordance with Rule 25,
Section 4, the discipline shall be stricken from the Claimant's record.
PLB NO. 7120
Page 22 Award No. 104
Case No. 104
AWARD
Claim sustained.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant be made. The Carrier is ordered to make the Award
effective on or before 30 days following the date the signed Award is transmitted to the
parties.
I
i
Sinclair Kossoff, Referee & Neutral Member
Chicago, Illinois
March S, 2012