S
PUBLIC LAW BOARD NO. 3304
CA$* No. 428
Award
No. 393
PARTIES TO DISPUTR:
UNITED TRANSPORTATION ONION
-and-
pURLINOTON
NORTHERN RAILROAD
COMPANY
STATEMENT
J2E_CJAZ:
Claim of Nebraska Seniority District (Wymore) Conductor P.E.
Mendoza for reinstatement to service with seniority unimpaired;
removal of censure from his personal service record; and pay for
all lost time as a result of an investigation held on August 3,
1995.
FIrmINCJ9 s
This Hoard, upon the whole record and all the
evidence,
finds as followss
That the partied were given due notice of the hearing;
That the Carrier and Employees involved in this dispute are
respectively Carrier and employees within the meaning of the
Railway Labor act as approved June 21, 1934,1
That this Board has jurisdiction over the dispute involved
herein.
On June 27, 1993, the Claimant was assigned ae the Conductor
on Train No. 97mR047 operating between
Kansas City,
Missouri and
Lincoln,
Nebraska. He went on duty at 200 p.m. at Murray Yard
in North Kansas City and arrived at Lincoln in the early fours of
June 3&, 1995. Upon arrival at Carling Tower, his off-duty point
at
Lincoln, Mr. Mendoza called Trainmaster J.M. Edwards and
advised him that he had
sustained
an injury prior to departing
Kansas City on Train
97MR047.
The Claimant said that he stepped
on some ballast (rocks) and injured his knee. He was examined at
a local hospital and he completed the required girst Aid
Notification form.
The Claimant was withhold from service with pay. According
to the Carrier,
this was
done as a precaution against further
injury. On June 30, 1995, the Claimant was advised to attend an
investigation on
July
G, 1995, to determine his responsibility,
1
33oU- 3q3
if any, for failing to report his personal injury in a timely
manner; for failing to work in a safe manner: and for being
accident-prone. The investigation was held on August 3, 1995.
On August 14, 1995, the Claimant was advised the he was dismissed
from service.
initially, this Board finds nothing improper about the
Carrier withholding the Claimant from service with 2av pending
his disciplinary investigation. Tha Claimant suffered no harm by
this decision.
Nor do we believe that the Claimant failed to report his
injury in a
timely manner. His injury occurred at 2;20 p.m. on
June 27, 1995. Ten (10) hours later when the Claimant arrived at
Lincoln, Nebraska, he promptly reported his accident to
Trainmnrter Edwards, The Claimant did not report his injury
sooner since he did not experience any pain until he began his
road trip from Kansas city to Lincoln.
It is this Board's considered opinion that the Claimant's
termination was unjustified. The Carrier has not proven by
substantial evidence that the Claimant's negligence caused his
personal injury on June 27, 1993. The Claimant was looking out
for
train
and engine movamants in Murray Yard when he slipped on
some rocks. There is no evidence that ha was careless when thin
accident
occurred.
The
Claimant sustained
eighteen (18) injuries
during
his 37
years of service with the Carrier all but two of which were
minor. The Claimant was out of
work a
total of four days for 16
of
thest
injuries. There is no evidence in the record before
this Board that the Claimant0s negligence caused any of his 18
injuries over a span of 37 years. Accordingly, the
Carrier
has
not established that the Claimant was in ury prone merely because
he incurred 18 injuries during his lengthy railroad career.
For all the foregoing reasons, this Hoard finds that the
Claimant's termination on August 14, 1995, was unwarranted and
the claim must be sustained as a result.
2
3304 -39
AWAR Claim sustained.
Carrier in directed to make the within
Award effective on or before thirty i30)
days
from the date hereof.
Robert M. O'Hrien, Neutral. Member
2
X_#, Mason, Employee Member
R.L. Luther, Carrier
Member
Datedi
bee. z, 19$7
3