' PUBLIC LAI? BOARD N0. 1926



      PARTIES TO THE DISPUTE: -


          International Brotherhood of Firemen and Oilers ox n`

          t--a w

          and ~Q o


          Long Island Rail Road Company - - ^~ _ y

                                  · ~. a .'


      STATEMENT OF CLAIM:


          Claim of International Brotherhood of Firemen and Oilers:


          1. That under the current agreement, Laborer C. C. Barnett eras

            unjustly discharged from service on January 29, 1977.'


            2. That, accordingly, the Long Island Railroad be ordered to reinstate Laborer C. C. Barnett with all Benefits, Vacation privileges and Seniority rights unimpaired and with compensation for all tim; lost as a result of said action.


      OPINION OF BOARD:

      This case involves the dismissal from service of'Mr. C. C. Barnett who was employed by Carrier as a Laborer.. Mr. Barnett entered service of the Carrier in December 1975 and worked from that time until his termination in January 1977 at the Morris Park Locomotive Shop T:xe record shows that .^.p_:rm:~:.:.·tely two months after. his hiring Claimant sustained an injury while working. ,During the succeeding eight months lee sustained four additional i njuriest all of which resulted in time lost from work and for three: of which lie submitted accident claims and received settlement payments from Carrier. Most of tile accidents occurred while Claimant was employed cleaning anti washing down locomotive units. follouicit, the fourth such accident in July 1976 Carrier transferred Claimant: to work other. than locomotive washing. . Thereafter while loading brakeslioes

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on November 28, 1976 Claimant dropped equipment on his foot and suffered a contusion of his right foot. Ile was X-rayed and cleared for return to work on December 1, 1976 but he did not come back to work until December 8, 1976.. On December 21, 1976 lie sought some nine days wages from Carrier's claims department but that claim was denied due to lack of medical verification. ,-
 On January 18, 1977 Claimant was called to a trial by Carrier on the following charges:
        "Being an unsafe employee as evidenced by five (5) personal -'.

        injury accidents since your employment on December 22, 1975,

        as follows:


            1. March 4, 1976 - soap burn, left wrist.

            2. April 13, 1976 - chemical irritation,, right eye. ..

            3. . June 25, 1976 - bruised left arm.

            4. July 26, 1976 - sludge in left eye. - . ' .

            5. Nov. 23, 7.976 - contusion, right foot." _ .

Thereafter, on January 29, 1977 Claimant was dismissed on the basis of evidence
 developed at the trial.- Under date of rebruary 9, 1977, the Organization
 appealed the discipline and requested expedited treatment of the claim.. By
 joint stipulation of the parties intermediate appeal levels were waived and on
 March 1, 1977 the claim was denied by Carrier's highest appeals officer. The
 parties thereafter established this Board to hear and decide this case. A
 hearing was held by the Board at Jamaica, hec:·York on ifay 11, 1977. Claimant
 was notified of the date, time and place of the hearing but declined to appear.
in person 'although lie was represented by his Organization. The record evidence..
 proves beyond a doubt that Claimant was an "unsafe employee" whether judged on
 the basis of his individual history or by comparison to other similarly situated
 employees. Safety statistics show that lie personally accounted for one-third, of
 the accidents among Laborers. at the locomotive facilities in 1976. Moreover.,
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        of some 80 laborers employed at the facility, his was clearly the worst . accident record. Examination of each of the five accidents involving Claimant during 1976 shows a consistent pattern of carelessness and/or violation of Carrier's safety rules. Thus in both of the eye accidents he was'not wearing protective equipment assigned to him; in the soap burn incident he continued-to wear gloves soaked with chemicals rather than changing to, a fresh pair and he did not report injury or seek aid at the time; a bruised arm and three days:' of lost work occurred' in June 1976 when he tripped over an engine parked in the washing area; and finally he dropped brakeshoes on his foot while stacking same - in November 1976. Analysis of the statistical data and his personal accident.. history leaves no room for doubt that Claimant has been an unsafe employee. Carrier having adduced ample evidence on,this point the only question remaining


        is whether the penalty of dismissal is appropriate in, the circumstances.' -,

        The central question in-this case is whether Claimant's unsafe work record is a result of carelessness or "accident-proneness." The answer to this question is determinative of the further question whether.dismissal is appropriate in this case. If the record shows a pattern of carelessness then,that is culpable misconduct for which Claimant might appropriately be disciplined. That of. course, leaves for further disposition the question whether the appropriate quantum of ' discipline is termination from all services. Included in review of the latter question is whether Claimant has been afforded progressive discipline and the oppartunity to conform his behavior to acceptable standards if- he can. If, on the other hand, the record established that Claimant was "accident-prone," i.e., due to soine physiological or psychological malfunction he is unable to work ' ' . , safely then this is not a case of discipline but rather a nondisciplinary dismissal situation. In such circiumstaaces where an employee is undoubtedly unsafe in his work: habits due to a condit.Con over which lie lins no control. the otnl.loyer is within its rights to term?~.:it.c the services not as discipline for

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culpable misconduct but out of a reasonable regard for' the safety of its other employees and operations.
 On the basis of a close review of the,record before us we are unable to conclude that Claimant's unsafe work record is a result of accident-proneness. As the transcript of investigation Ishows the evidence is incomplete on this point however because Claimant declined to participate in a full medical examination prior to his' trial. We note in passing that at the trial, Claimant indicated his willingness then to undergo full examinations and note further.the established principle that absent a contract provision the Carrier in its discretion may order an employee to undergo work related medical examinations. In any event

 the record before us is persuasive that Claimant's accidents were a result of.
 carelessness and disregard for safety rules. This is culpable misconduct for
 which he may appropriately be disciplined.. However upon review of the record
 we find no pattern of prior warnings or progressive discipline for this
 misconduct but rather an accumulation of offenses for which Carrier finally
 decided to terminate the Claimant. The only warnings in Claimant's personnel
 record were for tardiness and absenteeism but there is no evidence of oral or
 written notification that his personal accident history was unacceptable or
 could endanger his continued employment. In the absence of 'such warnings we,
 are compelled to conclude that the ultimate penalty of termination was too
 severe in this case. Accordingly we shall sustain the claim to the extent of.
 reinstating Claimant to his employment without back pay but with other rights
 unimpaired,on condition that he first undergo a full medical examination by

 Carrier. Further, Claimant is hereby placed on notice that his .. job is in peril and, he is subject to termination if he does not cease his careless work habits and disregard of safety rules. .

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FINDINGS:
 Public Law Board No. 1926, upon the whole record and all of the evidence, finds and holds as follows:
 1. .That the Carrier and Employee involved in this dispute are, respectively, Carrier and Employee within the meaning of the Railway Labor Act;
 2. that the Board has jurisdiction,over-the dispute involved herein; and

    3. that the Agreement was violated.

                                                        AWC I


                                AWARD -


                    The claim is sustained to the extent indicated '

                    in the Opinion. -


                          Dana E. Eischen(ai-


        T. Firriolo, Employee Member `-' R. E. 1'etezson,- Carrier Member.


. Dated: ~EPrfrlo~ 2. A77 . -