PUBLIC LAW BOARD N0. 3445
Award No.: 66
Case No.: 6E
PARTIES TO DISPUTH
BROTHERHOOD
OF
MAINTENANCE OF WAY EMPLOYES
AND
SOUTHERN RAILWAY COMPANY
STATEMENT
OF
CLAIM
Claim on behalf of T. E. Harris appealing his dismissal assessed
as the result of a September 15, 1988 investigation in connection
with violation of Norfolk Southern Operating Rule N and falsifying
an injury report.
FINDINGS
Claimant entered
the
Carrier's service on October 6, 1980. He has not
been the subject of disciplinary proceedings since he was hired.
Claimant was directed to attend a formal investigation by letter dated
August 30, 1988. The formal investigation was conducted September 15, 1988
on charges that he falsified an injury report and violated Rule N. Based on
evidence adduced at the investigation, Claimant was dismissed by letter
dated September 7.2, 1988.
At issue in this dispute is whether Claimant was justly dismissed; and
if not, what should the remedy be.
.x.:__ ._.,_-~LIYT-
(74'~
Claimant was involved in an accidental collision while operating a
bushhog on July 19, 1988. At that time, he was thrown into the windshield
injuring his face and jaw, Claimant did not file an injury report.
Claimant's face and jaw had been injured in the past. They were the source
of ongoing medical problems and he had been treated for them. At the
hearing before this Board, the Carrier stated that a foreman was with
Claimant at this time and was also hurt; he filed an injury report. On
August
24, 1988, the
Carrier's claim agent first learned of Claimant's July
19 injury while discussing settlement of an injury to Claimant's chin in
1986.
Rules 40(a) and N state:
Rule 40(a) An employee who has been in service 60 days or more
will not
be
disciplined or dismissed without a fair and impartial
investigation, which shall be held within ten (10) days of date of
written notice to the employee that such investigation will be
held. Such written notice, which will be given as promptly as
circumstances will permit. will state the nature of the charge or
charges against the employee. -
Rule N. When any person is injured as a result of an accident,
emergency medical assistance must be called if needed.
Every accident resulting in injury, death or damage to property
must be reported to the proper authority by the quickest communication available, and a written report on the prescribed form
must be submitted promptly.
The
report must include the name and address of each injured
person and describe the extent of injury. Names and
address
of
all persons at the scene are required, whether or not they admit
knowledge of the accident,
At a crossing accident, the conductor or employee in charge must
try to locate witnesses who can testify about engine whistle or
bell signals and about the functioning of any crossing gates or
flashing light signals. License tag numbers of vehicles observed
near the crossing must
also
be reported.
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The Organization's position is that Claimant was unjustly dismissed
based on the merits and procedural defects.
On the merits, the Organization maintains that the Carrier has not
sustained its burden of proof. The organization contends that the Carrier
was well aware that there was an accident an July 19 and that it was
incumbent upon Claimant's foreman and supervisor, who knew of the accident,
to make the injury report. The organization maintains that Claimant made
substantial efforts to seek medical attention in the days following
the
accident but that the Carrier initially denied him the time to do so.
As to the question of improper procedures, the Organization maintains
that the notice Claimant received set an investigation in excess of the 10
days in the future and so constituted a violation of Rule 40<a). Moreover,
the Organization contends that this and Claimant's lack of understanding of
the investigation denied Claimant the fair and impartial hearing to which he
is entitled,
The Carrier's position is that Claimant was dismissed for just cause
because Claimant admits he never reported the injury he received on
July 19
in direct violation of Rule N. Further, the Carrier contends that Claimant's headaches and facial discomfort were all preexisting conditions that
were not related to any alleged injury on July 19, 1988, and that for
Claimant to allege otherwise is falsification justifying dismissal.
As to the procedural question, the Carrier contends that the August 30,
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3NL(6--(o6~
1988 date on the notice was a typographical error that occurred because of
confusion over the scheduling of the hearing. While admitting that the
Organization is "factually correct" that the letter was dated in excess of
10 days prior to the investigation, the Carrier maintains that the charge
letter was mailed within 10 days of the investigation. Based on that fact,
the Carrier contends that it complied with the substantive requirements of
Rule 40<a).
After review of the entire record, the Board finds that dismissal was
not warranted and modifies the discipline to a suspension for 60 days and
awards back pay for the balance of time Claimant was out of service.
The Carrier has sustained the charge that Claimant failed to report the
accident on July 19, 1988. However, the record is clear that the Carrier
was fully aware of the facts and circumstances surrounding the accident.
Nevertheless, it is important for the Carrier to be fully informed of
accidents and injuries for its own sake and the protection of employes.
Claimant should have advised the Carrier but failed to do so; he is
therefore subject to discipline.
However, there is insufficient evidence in the record to prove that
Claimant falsified
the report
of the accident, Indeed, whatever report he
made of it and whenever he made it appears to
be
accurate. The fact that
Claimant had been injured in
the
same or a related part of his
body
in the
past does not preclude a similar, future injury. This appears to be what
occurred. In addition, the Carrier's logic is murky here: The Carrier
4
cannot on the one hand discipline Claimant for not reporting an on-the-job
injury and on the other hand maintain that he falsified that injury report.
As to the
procedural aspects of the case, there ix no dispute that the
date of the hearing notice was earlier that 10 days before the hearing and
that
this
is contrary to Rule 40(a). Although the error was
a
typographical
one and may not have affected the date of mailing the notice, the parties
must comply with the technical requirements of the rules.
In light of
all
these circumstances, the more appropriate discipline
is
a suspension for 60 days and reinstatement with seniority unimpaired, with
back pay for the balance of the time Claimant was out of service.
AWARD
Claim disposed
of
per Findings herein.
Neutr Member
Carrier Member
J/IAI
P.lDate:
/LOrga zati~mi
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