Brotherhood of Maintenance of Way Employes
 PARTIES TO DISPUTE: and
 Burlington Northern and Santa Fe Railway
 (Former ATSF Railway Company)

 STATEMENT OF CLAIM:













FINDINGS AND OPINION:

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 of the dispute herein.


The Claimant, Mr. Thomas L. Conway, was hired by the Carrier on August 27, 2001. At the time of the incidents which resulted in his dismissal from service, he was working as a Welder in the Carrier's Maintenance of Way Department. An investigation was held on July 1, 2002, on the following charge:



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The lengthy transcript of evidence and testimony taken at the investigation shows the following summary of events. On March 3, 2002, the Claimant was the victim of as assault while off duty, which resulted in a laceration on his head requiring nine staples, as well as neck and shoulder injuries from a blow by a cue stick. Having staples inserted on his head, he was unable to wear a hard hat, and had been told not to return to work until he had seen his doctor. He marked off duty to his immediate supervisor, Roadmaster John Palacios, stating he had suffered an injury at home. He did not file a written report on his injuries, nor was he instructed to do so. He was permitted to be off for eight work days.

 On April 16, the Claimant said he began suffering what he thought was a migraine headache, as well as pain in his neck and upper back. He marked off work on April 19 to consult his personal physician, who diagnosed his problem as a pulled muscle in his neck. Although the Claimant testified that his doctor conjectured that he probably hurt himself at work, he told Mr. Palacios that he didn't know when or how he had gotten hurt, and he didn't want to report it as an on-duty injury. He said he felt he had complied with the Carrier's rules by reporting it to his supervisor.

 Following two intervening rest days, the Claimant returned to work on March 22. During that day, he had conversations with four supervisors, Roadmaster Tony Silva, Roadmaster Palacios, Division Engineer Rick Mason, and Welding Supervisor Mark Neufeld. Their combined testimony, together with that of the Claimant, indicates that the Claimant called Mr. Silva, stating that he was still suffering some pain, and wanted to report it as an on-duty injury because he could not afford to pay for the prescribed medication. (In the transcript, the Claimant suggested that this was a misunderstanding, since under his prescription plan, medications would cost only $5.00 each, and he was able to pay for this).

 In a three-party telephone conversation with Division Engineer Mason and Welding Supervisor Neufeld on March 22, the Claimant was unable to identify with any specificity an incident causing his injury on April 16, nor the location. Asked again whether he wanted to fill out an injury report, the Claimant declined to do so. He said he only wanted some time off to see his doctor again and have his physical complaint taken care of. Mr. Neufeld testified that Mr. Mason agreed to give him a week off. He further testified that Mr. Mason said he wanted to be sure that there was no task being performed that caused the Claimant's injury, and the Claimant said there was not.

 The record shows that the Claimant was off work the rest of that work week, April 23 through 26, and returned to work on Monday, April 29. On Wednesday, May 1, the Claimant reported that he had hurt himself again, affecting his lower back, while loading heavy boxes of

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 welding material on a truck. In a telephone conversation with Mr. Silva, he said he just wanted to go home and rest. He was told to stay where he was and Mr. Silva would meet him there.

 He was interviewed by Mr. Silva, who insisted that he fill out injury reports for both April 16 and May 1, because the Claimant suggested the May 1 injury was a worsening of the April 16 injury, and the pain in his upper back had migrated to his mid- and lower back. Mr. Silva said he was told to obtain two injury reports by Mr. Tom Longanecker, Manager of Safety.

 Both injury reports submitted by the Claimant were dated May 1, 2002. The report for April 16 described the injury as "headaches, neck and upper back pain." The cause was described as "regular work habits." The report for May 1 described the injury as "low back pain." The cause, "loading welding material on truck."

 On July 26, 2002, Assistant Division Engineer M. S. Theret (who was also the Conducting Officer at the investigation) wrote the Claimant his decision on the charges. His letter reads, in part, as follows:

The Rules cited in Mr. Theret's letter read as follows:

 Rule 1.1








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 · Before beginning work
 · Before performing new tasks
 · When working conditions change

1.1.1

1.13

S-1.2.5


S-1.2.8


Mr. Theret's dismissal decision was promptly appealed by the Organization's General Chairman to the Carrier's Assistant Director - Labor Relations, Mr. Dennis Merrell,

 The Organization initially points out that the letter of charge alleged that the Claimant filed a false injury report on May 2, 2002. There was no report filed on May 2. The Claimant's representative, Assistant General Chairman Gary Marquart, at various points in the investigation, inquired about reports allegedly filed on May 2, and no one noted any such filing, except the testimony of Roadmaster Silva, at Transcript Page 14:


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The Organization concludes that the Carrier has failed to prove that the Claimant filed any personal injury report on May 2, 2002, as charged, and therefore the Carrier has not borne its burden of proof.

 The Carrier rejoins that while the injury occurred on May 1 and the initial paperwork was filed and completed late on that date, it "got into the system the following day, May 2, 2002." It characterizes this as a minor discrepancy, or technicality, which did not prevent the Organization from offering a defense or impinge on the Claimant's rights in any way. The fairness of the investigation was not impaired.

 The Organization argues that the Claimant suffered an injury to his back on May 1, 2002, it was properly reported to his supervisors, and an injury report was filled out as directed by Roadmaster Silva. (The Organization states that the Claimant was refused medical attention until the injury reports were executed, violating a letter of understanding which states that an injured employee requesting immediate medical attention will not be required to fill out an injury/accident report before being afforded medical attention. While that may be true in this case, that grievance is not before this Board, and does not have any bearing on the outcome of the instant case).

 The Carrier responds that the Claimant made material misrepresentations about the cause of his injury. It summarizes its position in these words from Mr. Merrell's letter dated November 2, 2002:

On February 27, 2003, Mr. Merrell again addressed this case with the Organization's General Chairman, reviewing the totality of the evidence. First, the Claimant was injured in a bar fight on March 3, 2002. He suffered an injury which required him to lose time from work.

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 Maintenance of Way Operating Rule (MWOR) 1.2.5 requires that off-duty injuries affecting an employee's duties must be reported at once, and prescribed forms completed before returning to work. He misrepresented his injury as one occurring at home.

 Next, says the Carrier, the Claimant alleges he began suffering a headache while at work on April 16, 2002, laid off work on April 19 to see his personal physician, and was diagnosed with upper back pain. The Claimant said the doctor said it happened at work. In fact, the evidence indicates that the doctor asked the Claimant what kind of work he did, and then opined, "You just most likely did it at work." On April 22, the Claimant indicated that he wanted to file an injury report for April 16, but in a conference call with Division Engineer Mason and Welding Supervisor Neufeld, he could not identify any location or any incident which caused the alleged injury.

 The Carrier states that the Claimant knew he was being charged with improperly filing an injury report. The Claimant knew he was accused of falsely reporting an on-duty injury which he had previously said was not work-related.

 Furthermore, the Carrier argues, even if he was truthful when he filed an on-duty injury report on May 1, 2002, he was in violation of the rules which require rp ompt reporting of injuries. (The Board notices that although the Claimant was charged with violation of MWOR 1.2.5, which requires that all cases of personal injury on duty must be immediately reported and the proper form completed, the notice of discipline does say that this rule was violated).

 The Board has carefitlly examined and considered the voluminous record in this case, and the arguments of the Parties. There is more than a little irrelevant evidence in the investigation transcript and attached exhibits.

 First, the Claimant suffered an injury in a bar room brawl on March 3, 2002. He could not work for several days. He stated that he was injured at home. He also said that he reported it as an injury at home because "I didn't want everybody at work knowing." He was given permission to be off work by his supervisor. He did not file a report, nor was he asked or instructed to do so. Although this injury and its cause was the subject of considerable inquiry during the course of the investigation, the Board does not find this off-duty iniury to be the subject of Mr. Theret's notice of discipline dated July 26, 2002, to which reference was made to "false report of Injury On Duty."

 The Claimant next suffered an on-duty injury on March 18, 2002, a sprain or strain to the lower back. Although the record of this injury was entered as an exhibit, there is no indication that it was not properly reported, but its existence indicates that the Claimant was aware of the procedures for reporting injuries.

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 On April 16, 2002, the Claimant experienced what he described as a migraine headache while performing welding tasks. He worked the two following days and marked off on April 19 to visit his personal physician. He called Roadmaster Palacios, stating that he had a pulled muscle, he did not know when or how it was acquired, but he declined to fill out an injury report when he was asked if he wanted to. Two rest days followed the 19'°, and on April 22, he told Mr. Palacios that he now wanted to report an on-duty injury. Apparently because of the Claimant's change of mind, Mr. Palacios consulted Division Engineer Mason, who in turn contacted the Claimant, in the three-way conference call in which Mr. Neufeld participated. Mr. Neufeld's notes on that call read, in part:

The final event occurred on May 1, 2002. Roadmaster Silva said the Claimant notified him about 10:30 p.m. that he had hurt his back, aggLn, while loading boxes of heavy welding material on a truck. He said that he had hurt himself previously, while working in Mr. Palacios's territory, who didn't want to have a reportable injury, because it happened at work, but his back was not getting any better. He said he did not want to make an injury report, but just wanted to go home and rest. He added that Division Engineer Mason knew all about it, apparently referring either to the previous injury on April 16, or to the suggestion that Mr. Palacios wanted to avoid a reportable injury. He marked off duty to his immediate supervisor, Roadmaster John Palacios, stating he had suffered an injury at home. Mr. Silva said he contacted Mr. Mason, who said the Claimant had not told him that (what?) on April 22. The record is not clear on this point. Mr. Mason instructed Mr. Silva to see if the Claimant needed to see a doctor.

 Two injury reports were filled out, one for April 16 and one for May 1. The transcript contains lengthy testimony regarding the injury report for April 16. Roadmaster Silva was examined:

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Mr. Silva prepared a SUPERVISOR'S REPORT OF BNSF EMPLOYEE INJURY/ILLNESS, also dated May 1, 2002, apparently intended as an account of a supervisor's injury/illness investigation and analysis. Under the heading, "Description: Describe how the accident occurred," he wrote:

The Claimant gave his account of how the April 16 injury occurred, based on his doctor's diagnosis. The manner in which the doctor drew his conclusion was the subject of considerable inquiry and later, exchanges between the Organization and the Carrier. Here is the Claimant's testimony, on direct examination:

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In contrast to the above testimony, the Claimant, when questioned by various supervisors on April 22, was unable to state with certainty that his pain was the consequence of any specific incident, nor even with a certainty that it occurred while he was on duty.

First, the bar room brawl on March 3, 2002, was an interesting side trip en route to the real destination. Considerable testimony and evidence was presented regarding this incident, but in the end, it was of little consequence to the outcome. The Claimant should have reported this off-duty injury, because MWOR 1.2.5 requires that an off-duty injury which affects the performance of an employee's duties must be reported. The Claimant said that he suffered an injury at home because he did not want it known that he was in a fight in a bar room, but he was not instructed to file a report, in any event. Despite all the time devoted to inquiry about this incident, no findings were made in the Carrier's decision on the investigation.

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 Passing reference was made to an on-duty injury the Claimant suffered on March 18, 2002, which was apparently reported properly.

The Claimant may have suffered some kind of on-duty injury on April 16, 2002, discussed above. He vacillated about whether to report it as an on-duty injury, telling Mr. Palacios he did not want to report it on April 19, deciding he did want to report it on April 22, and changing his mind again the same day, after talking with Mr. Mason and Mr. Neufeld. He was not ordered to fill out an injury report on either of those dates. Clearly, he should have filled out a report, based on what information he had, vague though it might have been, even if the injury had occurred off duty, since he was losing time from work. By his failure to make the report, he again violated MWOR 1.2.5, specifically that portion which requires that the prescribed report be completed. He did comply with that portion which requires reporting to the proper manager, although not "immediately," as the Rule demands. But in the notice of discipline, MWOR 1.2.5 is not named.


Finally, the Claimant was injured again on May 1, 2002, and he executed an on-duty injury report the same night. There is nothing in the record to indicate that this injury was not genuine,

nor any evidence that it was not reported properly.

The Organization argues that the Claimant was charged with infractions on May 2, 2002, but the record contains no evidence of anything at all on that date. The General Chairman wrote:



The Carrier rejoins that the Claimant's defense was not impaired by this "technicality." He knew he was being charged with improperly filing an injury report, on an injury he first stated he

did not believe was work related, and later indicated was an on-duty injury. Even if it was an onduty injury, he fined to execute the proper reports at the time of the injury.


The Board believes that the Claimant's hands are not clean. Even if he was uncertain about the cause of his injury on April 16, he was required to immediately advise his supervisor and file an injury report. His vacillation about reporting the place and cause of his injury casts some doubt on his credibility. The Board is caused to question his forthrightness.

Agreement, that an employee alleged to be at fault shall be apprised of the circumstance or matter to be investigated. This is not a mere technicality, as the Carrier suggests. It is fundamental to ensure fairness and a proper defense. True enough, in this case, as the Carrier argues, it seems that the Claimant's defense was not impaired. That hardly permits this Board to waive the

procedural elements of the Claimant's due process rights, however.

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 The Board notices that Mr. Theret's disciplinary decision following the investigation, written on July 26, 2002 (quoted on page 3, above), atypically fails to specify the date of the alleged infraction. While allowing that this may have been another typographical error, the Board must also admit the possibility that the attention given to the erroneous date of the alleged infraction may have influenced the decision to omit a date in Mr. Theret's letter. Neither is the Board impressed by Mr. Silva's tepid explanation for the date discrepancy at Transcript page 14: "[B]ecause it started at 10:30 p.m. because it carried over from the 1' to the 2"d."

 Arbitrators attach considerable importance to contractual due process provisions concerning the procedures that employers must follow in disciplining employees, particularly when the consequence is dismissal. At the same time, arbitrators hesitate to negate a penalty entirely because of procedural irregularities if they are satisfied the result is not a substantial injustice to the employee. In most cases, arbitrators take the procedural violation into account in assessing the appropriateness of the penalty, but do not declare the entire action a nullity.

 This Board is persuaded that the Claimant, on May 1, 2002, filed a false report of the injury supposedly suffered on April 16, 2002, after he failed to substantiate that he suffered the injury on duty. His uncertainty about reporting it on April 19 and April 22 casts doubt on how, when, why, or even whether it occurred.

 The Board has considered this employee's personal record. He is a relatively new employee, with only 7'/2 months' service. On the other hand, he has no prior disciplinary entries, no surprise for an employee with little longevity. The Board is caused to speculate that the Carrier's decision may have been colored by the series of purported injuries within less than two months - off duty on March 3 - on duty March 18 - on or off duty on April 16 - on duty May 1.

 Dismissal for a first offense is uncommon, except in the moist egregious cases. Theft, incarceration, false payroll entries, and similar acts of moral turpitude are such examples. In the doubtfid circumstances of this case, unproven by clear and convincing evidence, and with the procedural irregularities discussed above, the Board believes that the unclean hands of both the Carrier and the Claimant warrant a disciplinary decision less severe than dismissal. The dismissal shall be reduced to a nine (9) month suspension, commencing July 26, 2002, the date of the letter advising him of his dismissal. The Claimant shall be reinstated with seniority and all other rights unimpaired, and paid for time lost in excess of nine (9) months from the date of his dismissal oh July 26, 2002.

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Award within forty-five (45) days from the date of this Award.

R B. Wehrli, Employe Member Thomas M. Rohli6g, Carrier 9iber

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Date

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