PARTIES To DISPUTE:

CASE NO. 41
 -and
 MISSOURI-KAN5A5-TEXAS RAILROAD COMPANY
 STATEMENT OF CLAIM:

FINDINGS:

 This Public Law Board No. 4101 finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended, and that this Board has jurisdiction.

 The organization contends that the only charge in compliance with Article 25 of the Agreement is that concerning 'marking off under false pretenses ...." While the June 14, 1985 charge letter is inartfully drafted, Mr. Crawford and his representative could and we believe did understand heat they were to defend against other charges alleging possible rules violations.



under false pretenses after reporting an on-the-job injury at

                                                H I DI -'4


approximately 12:15 a.m. on June 13, 1985. The burden of proof is on the Carrier in discipline matters to substantiate its findings of responsibility by substantial evidence of record. Mr. Crawford denied that he marked off with a personal injury. Mr. Streety testified concerning his telephone conversation with Mr. Crawford at 12:30 a.m. on June 13 prior to Mr. Crawford's leaving the pro perty:

          ... I told Mr. Crawford at that time that I

          could (not) help but wonder how this might be

          related to the fact that he had played in a

          baseball tournament the weekend before and he

          said it might be related in some way but that

          he had pulled the muscles in his leg running -

          to catch the car and set the hand brake ....

                                    (Tr-5)


Mr. Crawford testified in part concerning his conversation with Mr. Streety at 12:30 a.m. on June 13, 1985 that-

          ... It was clear to both of us upon my explanation of playing in the tournament in 95 degree heat that this could not be an on the job injury ....

                                    (Tr-151


Mr. Streety testified that it was Yardmaster Smith who told him that there was a personal injury on the lead. Mr. Crawford denied that he told the Yardmaster that he had a personal injury. And the Carrier did not call Ms. Smith as a witness to develop the facts in this regard. Rule 806 requires the following:

        806_ REPORTING: All cases of personal

        injury, while on duty, or on company pro

        perty must be promptly reported to proper

        officer on prescribed form.


Mr. Streety dial not testify that he informed Mr. Crawford to fill out the MKT's "Form 335 Rfev" as is required in personal injury
                                                ~Io -


cases. Nor did Mr. Crawford himself fill out such a report as he
 would be required to promptly do in a personal injury case under
 Rule 806.
Superintendent Gale improperly cut off the questioning of Operator-Clerk Nunez as to whether Ms. Streety instructed him to mark Mr. Crawford off with a personal injury, but the record is clear that Mr. Nunez himself took it upon himself to mark Mr. Crawford off "ODI" -- on duty injury.
Ultimately the Carrier has not shown that Mr. Crawford masked off under false pretenses. The fact that some thirteen and one-half hours after marking off he was squatted down using a drill at his
 wife's soon to open tanning salon does not prove that he did not, have the strained or pulled thigh muscles that he informed Mr. Streety of at 12:30 a.m. To meet its burden of proof on the false pretenses charge, the Carries would have to show that Mr. Crawford was performing activity incongruous to the condition asserted as the basis for marking off. The Carrier teas not met this burden with substantial evidence of record.
                          ZI


The company in its inartfullx drafted charges refers to Mr. Crawford refusing to see the Company doctor on June 13, 1985. Such would be the basis for the Carrier's finding of insubordination. At 2:05 p.m- Mr. Streety was clearly aware that Mr. Crawford was not claiming an on-the-job injury. (See Tr-19, lines 19-231. Mr. Crawford was marked off duty and was not under pay, he had not filed a Rule 806 personal injury report, and the Carrier through Mr-
                                                  z-1 I D(-ski


Streety at leant as of 2:05 p. m. was aware that Mr. Crawford had no design to assert as on duty personal injury. Mr. Crawford had no obligation to wee a Company doctor on these fasts on June 13, 1985. And Mr. Crawford recognized on June 13, 1985 that he did have an obligation to see the Company doctor before returning to work, which obligation he did in fact fulfill on sane 18, 1585. The Company has net met its burden of proof on Rule 607(3) violation.
                          xxx


The Carrier has asserted a Rule 506 "unauthorized employment" violation. The Carrier has the burden of proof, as set forth pre viously, to prove its case by substantial evidence of record. 7Lf an employee engages in another business or occupation without proper authority it is a violation of this Rule. This Board suspects that Mr. Crawford did not have authority from the proper authority, that is the General Manager, to allow him to help his wife as the things necessary to oiler: up her business an June 17, 1985. (See Tx-16). However, this Board cannot make a decision based on a guess or suspicion, The Carrier never called any witness to testify that Mr. Crawford did not have authority- Nor did the Carrier ask Mr. Crawford himself if he had such authority. We are compelled to con clude that the carrier has not shown by substantial evidence of record that Mr. Crawford had violated Rule 606.
                          IV


We have studied all of the cited rules and we conclude that the Carrier has not shown by substantial evidence of record that MX. Crawford was responsible far viol.atiny any of these pules. Mr.

                                                  Hl of -4l


Crawford shall be returned to service with all rights unimpaired,

 as previously directed by the Board. And as set forth in Article 25

 he shall be. ^pai_A for all time last."

                          AWARD


                  Sustained as per Findings.


                Bavad P. Twomey, Chai~an

                and Neutral Member


    J. A. A o Mr . L. Ja OVec

gloyee Membe rrie~Memb r

DATED! ~~/AV