NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4370
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD NO. 61
Case No. 61
STATEMENT OF CLAIM
1. The Carrier violated the provisions of the current Agreement when it dismissed Section Laborer F. M.
Montano from service on May 15, 1995 for alleged violation of Rules 1.1, 1.1.2 and proneness to personal injury
[which was] arbitrary, capricious and on the basis of
unproven and disproved charges and is in violation of
Rules of the Agreement.
2. The Carrier will now be required to return
Claimant to service with all seniority and other rights
unimpaired and compensated for all wage loss suffered.
F I N D I N G S
The Claimant was subject to an investigative hearing following
his report of a sprained back, which apparently developed in the
course of a day's work of shoveling rock. The hearing was based on
this incident, but primarily it concerned the Claimant's alleged
long-term proneness to injury. Following the hearing, the Claimant
was dismissed from service.
At the hearing, reference was made to the Claimants 14 previous injuries owing to duty-related causes since 1980. The record
also shows that the Claimant had been counseled and subject to
training concerning safe working conduct. The Claimant himself had
no explanation as to his inability to maintain a satisfactory
safety record. All this leaves no doubt that the Claimant is
simply unsuited for the type of employment offered by the Carrier.
The dismissal action was a judicious decision in consideration of
the continuing safety of the Claimant as well as other employees.
A W A R D
Claim denied.
HERBERT L. MARX, Jr., Neutral Referee
NEW YORK, NY
DATED: November 5, 1996
-2-