Award No. 213
Case No. 213
PUBLIC LAW.-BOARD NO. 2774
PA Brotherhood of Maintenance of Way Employes
DISPUTE: and
Atchison, Topeka & Sante Fe Railway Co.
STATEMENT OF CLAIM: -
1. That Carrier's decision to remove former Coast
Lines's Welder Helper, Gene Yazzie, from service,
effective August 7, 1991,
was
unjust.
2. Accordingly, Carrier should now required to reinstate
the Claimant to service, with his seniority rights
unimpaired, and compensate him for all wages lost
from August 7, 1991.
FINDINGS
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 duly constituted under Public Law 89-456 and has
jurisdiction of the parties and the subject matter.
The record indicates that on the morning
of
August 7, 1991, when Claimant
reported for duty, he tripped and fell on a ballast section in the yard where. he
was assigned. He struck his elbow and asked to be taken to a doctor. He was
taken to a doctor by a Supervisor, and in the course
of
the transportation, the
Supervisor noted a strong smell of alcohol on the breath of Claimant. Upon
arriving at the hospital, two other officers having been summoned, both the other
- _ z
of July and on July 19th, he reported to the Roadmaster, advising the Roadmaster
of his desire to claim an on-duty injury and he filed the necessary report.
Subsequently, on July 22nd, a letter was addressed to Claimant advising him to
report for an investigation based on the allegation- that he may indeed have failed
to properly report an incident of an injury and had falsely claimed an injury,
based on the incident described.above. Following an investigation, Claimant was
dismissed from service. -
The Carrier maintains that the testimony at the investigation indicates that
Claimant did not injure his knee while on duty on July 16th, and that his report
of the injury is less than accurate. Thus, the record clearly establishes the fact
that the alleged injury of July 16, may indeed never have occurred, and
furthermore if it did occur, the injury report was filed on July 19th, which was
tardy.
The Organization -insists that the record was devoid of any evidence to establish
that Claimant falsified an- injury as charged. At most, he could have been found
guilty of filing an injury report late, which in this instance was caused by the fact
that the physician did not diagnose his problem, until the date that he filed the
injury report, July 19th. Petitioner says further that the employees' reluctance to
file an accident report was exacerbated by Carrier's vigorous investigation of such
reports, and employees feeling that it was necessary to clearly establish that the
injury occurred while on duty, before filing such a report. In this instance, it is '
clear according to the Organization, that Claimant did indeed file a report as soon
as he was aware that there was an injury caused by an on-the-job incident.
Furthermore, the Organization insists that Carrier did not bear its burden of proof
in this matter, and the claim should be sustained.
3-1-7 y -13
An examination of the record of this matter does not indicate any support for
Carrier's position that there had been a falsification of an injury. There was an
injury, which was diagnosed and attested to by Claimant, as well as his physician.
At most it may be said that Claimant filed his report three days late. As such, it
is obvious that the penalty of dismissal was excessive under all of the
circumstances. It is true, as indicated by Petitioner; that Carrier did not bear its
burden of proof in establishing that there was any falsification of an injury by
Claimant. For that reason the discipline in this instance shall be modified, and
Claimant shall be reinstated to its former position with all rights unimpaired, but
without pay for time lost.
AWARD
Claim sustained in part; Claimant shall be reinstated to his
former position with all rights unimpaired, but without pay
for time lost.
ORDER -
Carrier will comply with the Award herein within 30 days
from the date''hereof.
airman
C. F. Foose
Employee Member
Schaumburg, Illinois
June
3
t7 , 1993
~ 9
44
Pope
rrier Member