Org. File
H-77-1
Co. File 011-131 (P)
Public Law Board No. 1922
PARTIES United Transportation. fjnion (Switchmen)
TO
i)ISPU1'k:: and
Soutlk!rn Pacific Transportation Company
STATEMENT Claim is made for the reinstatement of
OF Switchman L. L. Padilla with seniority
CLAIM: rights unimpaired, pay for any time lost,
beginning February 25, 1976, as a result
of improper dismissal, and a day's pay
for attending
investigation, each
date,
February 19 and 20, 1976, Bakersfield
Yard.
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FINDINGS: Petitioner challenges the validity of
claimant's discharge. The reason assigned
for his dismissal is that he had demonstrated in the course
of his employment "a continued behavioral pattern of sus
ceptibility to injury rendering him unfit to further pursue
the occupation of switchman in that he sustained on-duty
injuries on may 27, 1965, December 20, 1968, June 22, 1971,
May 6, 1972, June 25, August 8 and November 5, 1974 and
September*16, 1975."
The discipline was administered after a hearing
had beed held on charges alleging the above mentioned "behavioral pattern." There is no indication that any reversible
procedural error was committed or that claimant was singled
out for discriminatory action. Of 51 switchmen, 20 sustained
no injuries at all while the number of injuries for the remaining 31 averages less than 3.
There is testimony by Carrier officials that."'
claimant was awkward, uncoordinated and slow in reaction.
Dr. Meyers, Carrier's Chief Surgeon, concluded, on the basis
of his examination of claimant in March 1974 and a review of
injury reports that he is accident-prone and "would do a disservice to himself, n possible disservice to his fellow employees and this company if he were to remain as a switchman."
At the same time, Dr. Meyers found him "independent", "strong",
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(~ "ambitious" and "should be able to find an occupation more
in line with his personality where he would be more success
ful and happier."
Claimant was employed as a switchmen from
May 11, 1964 until February 25, 1976, when he was discharged.
Carrier emphasizes he was injured eight times on the job during
that period. On May 7, 1965, he sustained head lacerations.
while attempting to release a handbrake (no loss of time was
involved.) On December 20, 1968, he slipped on a brake
platform, injuring his lip and a tooth (again without loss
of time). On June 22, 1971, he slipped on sand while climbing
off a stopped engine; he fractured his right elbow, was operated on for the fracture and lost 10 months 5 days. On May 5,
1972, the first day he returned to work after the June 22
mishap, his right arm, possibly still weak, failed to support
his weight and he fell, injuring his left arm and shoulder;
he lost 1 year 23 days on this occasion. On June 25, 1974,
his eyes became irritated when sand blew in his eyes-; he
bumped his knee on the engine ladder (four days were lost).
The sixth injury occurred on August 8, 1974
when he was working as foreman and his crew was switching at
a shed. He failed, according to Assistant Trainmaster Davis
and Trainmaster Bauer, who didnot witness the incident, to
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observe a red signal light, a protective device used to warn
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Award i3
employees of the presence of gas fumes. Claimant testified
that the light was not visible from the location of the crew
at the time. At any rate, claimant and his crew were beset
by the fumes and sustained irritation to eyes, lungs and
stomach (three days were lost).
The seventh and eighth injuries were sustained
respectively on November 5, 1974, when 24 days were lost and
September 16, 1975, resulting in 48 lost days. In the November
5 incident, claimant hit his right elbow getting on an engine.
On the eighth occasion, a sugar beet fell off one of the cars
clailnarit's crew was coupling; it struck claimant causing facial
bruises and the loss of several tech. He hurt his back, elbow
and knee as he fell to the ground.
We can appreciate Carrier's concern and are
disposed to give management considerable latitude in determining physical fitness for switchman positions. It may well
be that a time may come in a man's lifetime, even though he
weathers the probationary period and years of employment, when
he is no longer physically competent to perform the duties of
his assignment.
This record, however, does not provide a sound
basis for dismissal. We are not convinced that it demonstrates
that claimant was at fault on each occasion. No discipline
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had been administered when the first seven injuries occurred.
It is of interest that no formal warning or charges were
issued, so far as this record shows, when the sixth incident
occurred on August 8, 1974, although Carrier insists that
claimant failed to observe a signal on that occasion and it
was the only occurrence that involved injury to anyone other
than claimant. If claimant were negligent or violated any
rule, he should have been charged when the incident took
place so that he and his Organization would have timely
opportunity to meet the accusation. As it stands, the sixth
episode was not mentioned in any charge until about 18 months
after it had taken place.
while reluctant to set aside Carriur's findinCs
in a case involving-fitness to continue
in
employment, we wust
also consider the legitimate interests of the employee. I:
Carrier desires to discipline an employee for negligence,
absenteeism or misconduct, it can
issue
timely charges in
that regard. While that factor, standing alone, may not be
controlling, the rather circuitous "accident-prone" approach
for terminating an employee can be validly upheld only if
supported by a strong and detailed record. See Decision 4714
of Special Board of Adjustment No. 18. It is our
conclusion
that neither the medical evidence nor supervisors' testimony
presented in this case is sufficient to establish that claimant
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can no longer continue in Carrier's employment- .'
However, on the basis of this record, particularly the on-the-job injuries and resulting loss of working
time, a suspension without pay of as much as 30 days would
not be inappropriate to emphasize the importance of avoiding
injury and absences. It could be administered in line with
the principle of progressive discipline.
AWARD: Dismissal reduced to a 30-day suspension.
Claim sustained in all other respects..
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ORDER: Carrier is hereby ordered to make the above
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i Award effective on or before
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Ha d . , Chairman
Weston
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I %arrier member Employee Member