Upon the whole record, after hearing, the Board finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board is dul·; constituted under Public Law 89-456 and has jurisdiction of the parties and the subject matter.
personal injury due to a contusion to his tailbone whale climoinc, over the tailgate of a truck. In that instance. his toot slipped and he fell on top of the tailaate. He had six days off as a result of that accident.. His service was also interrupted previously by a six-month period in which he was off work due to an off-duty injury. Thus his total service was approximately eight and one-half years.
By letter dated February 13, 1907, the Claimant was instructed to be present at the hearing to develop the facts with respect to his alleged continued failure to work: safely and injury-free as a Maintenance of Way Employe during the period from 197£3 to that date, during which time he was reported to have had 14 personal injuries. For this. Claimant was charged with violating Carrier -s Rule 1, which reads:
He was also alleged to have violated Rule 506 which specifies that employees-must not be careless of the safety of themselves or others. Following the investigative hearing. Claimant was found guilty of the charges and dismissed from service.
Claimant to recall all the circumstances surrounding the 1·! incidents upon which Carrier relied and in which he had filed an accident report. However. Petitioner insists that six or the incidents were very minor and involved no loss of time from work and indeed. Petitioner argues, that 11 of the 14 incidents resulted in no loss of time from work. Petitioner also maintains that the in3uries would not have been reported but for Carriers rule requiring all injuries, no matter how small, to be reported. Furthermore, it is insisted that some of the incidents, as the testimony specify, were as a result of Claimant beinq required to operate defective equipment or not having sufficient help to properly accomplish his tasks. In addition, Petitioner notes that two of the incidents, one of December 1982 and the other-of February -V 1987. resulted in prior- formal hearings and disciplinary action against Claimant. For the reasons indicated, the Petitioner insists that dismissal was totally unjustified.
The Carrier notes that the 14 accidents reported in Claimant's record were considered by the Assistant Division Engineer to have been extremely serious and could have been even more serious. Carrier aruues that Claimant's records specify without question that: the was an unsafe employee. The repeated pattern of injuries. in spite of counseling and every effort by Carrier to correct the problem, resulted in no improvement throughout Claimant's career nsth Carrier. According to Carrier; C.laimam t showed himself to be
accident prone and bereft of ordinary caution in performance of his job. His conduct is potentially very costly and could be an extreme hazard to his fellow employees, as well as himself. In addition to the above, Carrier points out that a survey of the records of other- employees who do basically the same type of work as Claimant and have had aoprorimately the same length of ser--~,ice resulted in much lower -injury levels for them than for Claimant. Carrier also relies on a number of awards in other situations involving the same type of problem. Among those was the award in First Division Case- No. 16340 in-which the referee found that Carrier would have been derelict in its duty in that circumstance had it reinstated the particular Claimant, placing him in jeopardy for still another and possibly a more serious injury. In addition, the Carrier cites the award in rublir Law Board No. 542 (Award No. 2) which will be discussed hereinafter.
ThaL matter must be evaluated in terms of the particular accidents involved and their seriousness. For example, the very first accident reported, that of December 14, 197£3, dealt with aettinq a piece of steel inhis right eve by holding an oil drum while a welder was cutting it in half. Even though there were no days lost and no dollar settlement involved, as the Board views it. that was a serious incident and accident. A thorough evaluation- of the accidents, for instance, indicates that there were a total of four accidents which involved slipping and various injuries as a result of slipping, including such things as spraining an ankle, fracturing a big toe, and so forth. In sum_ it is the Board's view that the accidents in question over the period of eight and one-half years were for the most part quite serious. While the Board does not view all of them as being serious in the same sense as the Carrier does, a sufficient number of those accidents could have resulted in maiming or significant injuries to either Claimant or fellow employees. The Board is also aware of the fact that in the comparison of Claimant's 14 injuries over the same period of time with the injury record of six other fellow employees engaged in the same type: of activity and the same seniority roster, this situation appears quite serious. Of the six employees one had five accidents over tide same period of time, one had four, two had throe, anal two had one each, while Claimant of course had i4.