, r.*· r_'T r ,.~
 i.::iT T=S' LHE ATCHISON, TOPE` -ND SA:;TA FE u_lLWr.: CO:iPt_;i
 TJ
 :.I32'UTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

 STATENEINT OF CLAIM:
1. Mat the Carrier's decision to remove Plains Divisior. T_ackt:an
 :l. R. Gonzales from service was unjust.

 ?. That the Carrier now reinstate claimant with seniority, vaca
 tion, a1:, benefit rights unimpaired and pay for all :page loss be
 ginning July 28, 1932 continuing forward and/or otherwise made whole,
 because the Carrier did not introduce substantial evidence that move:;
 tae claimant violated the rules enumerated in their decision, a..~.d ever
 _f claimant violated the rules enumerated in the decision, permanent
 _ismissal from service is extreme and harsh discipline under the
 c i- cums tan'c es .

 ::DI:TGS: This Public Law Board _1o. i5j"' finds that the parties
 =r' are Carrier and Employee within the meaning o= the~Ra_lway Labor Act, as amended, and that this Board has jurisdiction.

 In this dispute the claimant was charged with alleged misrepresentation of facts, withholding information and other irtegularities in connection with an alleged injury claimed by him at approximate l·:
 p.m. at Mertzon, Texas while employed as a trackman on tae zi~ L_::e Section. Pursuant to the intestigation tile claimant was found guilty of violating Rules 14 and 1& and wad discharged from the ser.i.ce of the Carrier.

 T:iere is a great deal of testimony which had to be studied care=ally. T::e claimant had been employed for approximately one year and five months as a trackman.

 Me claimant testified that at approximately 2:00 p.m. on June ?:;, 1932 he experienced a sharp gain as he was bending down, squattin down to get a shovel full of ballast. He testified that trac~':man Frank Gander was there and asked what was wrong with him, and he replied he had a low back pain but that he was O.iC.

 T~e claimant further testified that he started walking a few steps when Section Foreman Esparza saw him using the shovel as a crutch and asked what was the matter, and claimant replied he had a pain is his lower back. He testified that he went to the truck and coc a drink of water and tried to go back to work but was unable to-do so because of the pain in his lower back.


T:13 claimant also testified that ae was still :1a~'_ng naii_3 '^ _3 Lower back while they ,,7ere riding in the truck to ~i,~ i.a~e,yTenaS. .e testified that he did not tell. the foreman that he was 3oino to a doctor. He then tests=led that the following ^orning :=a went to
 m1
 ae emergency ward in Big Lake, Texas.

 le claimant testified that he was not aware what a 1421 Form was and did not know whether he had filled one out or not, but he had signed some papers.

 .aa claimant was asked if he had been involved in any activity oc= ;:uty which could have resulted in the alle,;ed back injury, and ae stated:

      "No, T_ was- involved in a mi>understandin'~ with Track'-an. Ruben Perez which happened Thursday niiht at 2:00 o'clcc?c in the morning at the night club in San n.gelo. s fa_ as a back injury at the time o_° the tiisunderstand_ng, there was none whatsoever, Leo back injury, no back pain,. no injury as far as my back was concerned." .


The claimant admitted he was knocked down but he stood up, walked sway, went horse and cleared up, and when he waa :.cocked down, he landed on his right side. 'the clai=ant testified he was in gocd rnysical condition going back to work Monday morning. The clai:aa::t testified that he did not work on Friday, ,~u:.e =:,.

 =: Special Agent testified that he interviewed Niss Zrnestina Mendez, and she told him she and Miss Hernandez had gone to a night club with the claimant on Thursday night and at 2:J0 a,m. when the club closed she and her girl friend went to a convenience store for a sandwich, and when they returned they saw to claimant corning toa:ara the car, and he had blood on him. She further stated that claimant said he had got into a fight there at the club and somebody knocked him on his butt.

 Tae Special Agent testified that he then contacted Alfonso Rodrij·_e= who stated that he had not seen much of tile fight but heard the co,__motion and looked over, and the claimant' was getting up from tae ground and was bleeding from a cut on his head, and another man by the name of Ruben Perez hit the claimant two or three times after he had gotten up.

 Safety Supervisor T. P. Allen testified that he investigated the ;natter herein and interviewed Mr. Esparza, Mr. Sturm, D. Hoyos and rZL . Longoria. He testified that Mr. Esparza told him that about 1:00 p.m. he noticed the claimant by the truck getting a drink o= water and asked if there was anything wrong, and the claimant said he had a cramp in his back; the claimant then got a drink of :later and went back to shoveling screenings.
                                              .-ward i:o. 197


    . - !'age 3


Sucervisor.Allen testified that Mr. Sturm. told Him a ::as on duty _:onday Horning whet, the claimant came to work, and he no=iced the claimant had various scratches on his body, or. ;his nose and around his elbow. 'Ile testified :Ir. Sturm told him he asked the claimant x'.-.at had haprened, and claimant said he had been skiing over the waekand and had incurred the scratches. He further told _,ir. ilen that when he noticed the claimant going to the true. to get a drink of water he was limping a little bit and when he asked what was wrong, claimant stated he :had cramps in his back. .

 Supervisor Allen also testified he discussed the matter with D. Hoyos who was on duty Monday morning, June 23, and he told him claimant was quieter than usual and claimant told him the had been involved in a fight. He also told Ur. Allen that the claimant :has working slower than usual all day long. .

 Supervisor Allen testified that fir. Longoria. told :him he was on duty on the .zcrn:Ln& of June 28 and when zne claimant cache to work, he noticed that he was limping, had scratches on his nose.

 Supervisor Allen also testified that he went to the t:ospital and talked with Dr. Wright, and the doctor advised him that when he examined the claimant, the x-rays showed everything in the lumbosacral area to be normal, and the only area where he found any tenderness or pain was in the coccyx or tail bone area. The doctor advised fir. Allen that this type of injury was not a symptom typical of a back strain, and it would be very rare for any t;7pe injury in that particular area to have occurred ~unles he had been knocked very :lard on :his tail bone.

 After carefully examining all of the evidence, the Board finds that taere is sufficient evidence for the Carrier to find that claimant was guilty of the violation as charged. This is a very serious violation, and the claimant had only been employed by the Carrier for a short time.' Consequently there is no justification for setting the discipline aside.

 As1AHD: Claim denied.

                              Freston J. More, Chairman


                                ganization L em. er


                              59k~A~

                              'Carrier-member