"Claim of the System Committee of the Brotherhood that: 1. The Carrier violated the Agreement on May 22, 2001, when it issued the Claimant, Mr. A. R. Morse a Formal Letter of Reprimand for allegedly not being alert and attentive resulting in a personal injury. 2. As a result of the violation referred to in part (1), the Carrier shall remove the discipline mark from the Claimant's personnel record and make him whole for any time lost." [Carrier's File 14-01-0111. Organization's File 10-1313-O18.CLM]

Upon the whole record and all the evidence, the Board finds that the Carrier and

Employees ("Parties") herein are respectively carrier and employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction over the dispute herein.

The Claimant, Mr. A. R Morse, was hired by the Carrier in 1976. I-Es personal record shows only one previous disciplinary entry, ten demerits in 1990. On March 30, 2001, he was ordered to attend an investigation on April 10, 2001, "for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged failure to properly report a personal injury and your alleged failure to be alert and attentive when you sustained a personal injury on Wednesday, March 28, 2001, while assigned as Track Inspector at Chillicothe, Illinois."

The investigation was twice postponed at the request of the Claimant's representative. It was finally held on May 10, 2001. The Claimant was represented by the Organization's Vice

The investigation transcript describes the following events. The Claimant stated that on March 28, 2001, as he was operating a lever on a Hi-Rail truck, which raises and lowers retractable flanged wheels for use on the track, a plastic or rubber cover or grip on the lever handle slipped off while the Claimant was exerting physical force to raise the lever. This resulted in his hand suddenly moving upward, striking his cheekbone and causing his thumb to "poke" his eye. Although he described the occurrence as painful, he said he did not view it as a serious injury. Nowhere in the investigation transcript is the time of this occurrence recorded.

"1.1.2 Alert and Attentive'

Employees must be careful to prevent injuring themselves or others. They must be alert and attentive when performing their duties and plan their work to avoid injury."

"1.2.5 Reporting

All cases of personal injury, while on duty or on company property, must be immediately reported to the proper manager and the prescribed form completed."

On May 22, 2001, the Carrier's Division Engineer wrote the Claimant, in pertinent part:

"This letter will confirm that as a result of investigation held May 10, 2001, concerning your failure to properly report a personal injury and your failure ro be

Public Law Board No. 4244 Award No. 263

Case No. 269

alert and attentive when you sustained a personal injury on Wednesday, March 28, 2001, while assigned as Track Inspector at Chillicothe, Illinois, you are issued a Formal Reprimand, for violation of Maintenance of Way Operating Rules 1.1.2, Alert and Attentive, and 1.2.5, Reporting.... In assessing discipline consideration was given to your personal record."

This decision was appealed to the Carrier's designated offcer, declined by him, and is therefore presented to this Board.

The Board finds that the charge of failing to properly report his injury has been proven. Even those injuries which appear slight or insignificant at first may worsen, or their severity may

not be fully apparent until the initial shock has dissipated. Rule 1.2.5 requires that he make _

immediate report to the proper manager and complete the accident form prescribed by the Carrier.

This rule is intended to make the employer aware of conditions which might be conducive to

injury, for future avoidance, to ensure that medical attention is promptly and properly given to the

injured employee, and to preclude worsening of the injury and further liability by the Cam' ier.

The Board concludes that the Canier has not proven the charge of failure to be alert and attentive, h(. ;ever, The record is altogether lacking in evidence that any act of commission or omission by the Claimant resulted in his eye injury. The lever which raises and lowers the Hi-Rail truck's flanged wheels was difficult to operate. The Claimant's undisputed testimony ;H; rn!-s that another vehicle he drives has the same condition`. He said, "You have to use force to get them to move." This suggests something inherent in the device's design, or a manifestation of normal wear. He could not reasonably have expected the handle or grip to come off the lever while he was exerting the customary force to move it, unless he had previously experienced such an event.

The Board notes that the Organization's appeal addressed the two components of the disciplinary finding by the Division Engineer, discussed in the preceding paragraphs, (1) failure to properly report a physical injury, and (2) failure to be alert and attentive, but the Statement of Claim before this Board names only one of the two, i.e., "not being alert and attentive." The record does not show that the other component was abandoned. Whether the "reporting" offense was omitted inadvertently or purposefully is not known. In any event, the bottom line result is the same.

If both issues are properly before this Board, we order that the discipline for "failure to be alert and attentive" shall be deleted from the Claimant's personal record, but the "reporting" charge shall remain. If the "alert and attentive" charge is the only issue before this Board, we

p164244.263 3

AWARD