PUBLIC LAW BOARD N0. 4373
PARTIES SOUTHERN PACIFIC TRANSPORTATION CO. )
(EASTERN
LINES) )
AWARD N0. 7
TO AND )
CASE NO. 7
BROTHERHOOD OF MAINTENANCE OF WAY )
DISPUTE EMPLOYES )
STATEMENT OF CLAIM:
1. Carrier violated the effective Agreement when Dallas
Division Laborer J. Q. Hodge was unjustly dismissed
from service without receiving a fair and impartial
investigation.
2. Claimant Hodge shall now be reinstated to his former
position with pay for all time lost, with vacation
and all other rights unimpaired and his personal
record cleared of all charges.
HISTORY OF DISPUTE:
At the time of the events giving rise to the claim in this case
Claimant was working on the Dallas Division as a laborer on Extra Gang 417.
On March 5, 1987 Claimant helped lift a rail drill from a truck
at which time he felt a pulling sensation in his back. That evening
Claimant placed a call to his supervisor but the supervisor was not available.
Claimant again called his supervisor on the morning of March 6 informing
him that he was going to see a doctor regarding pain he was experiencing
and that he would not report to work that day. At approximately 6:00 p.m.
on March 6 Claimant telephoned the Roadmaster to inform him that Claimant's
doctor had diagnosed his injury as a possible slipped disk and that Claimant
related the injury to the lifting of the rail drill the previous day.
Claimant cameto Houston, Texas on March 9, 1987 and filed a Form 2611 concerning his injury.
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By letter of May 7, 1987 the Carrier notified Claimant to appear
for an investigation for failing to report an alleged personal injury properly
and feigning a personal injury in violation of Rules 806, and 607
0)
and
(4). The investigation was held as scheduled. By letter of May 27, 1987
the Carrier notified Claimant that as a result of evidence adduced at the
investigation he had been found guilty as charged and that he was dismissed
from the Carrier's service.
The Organization grieved the discipline. The Carrier denied the
grievance. The Organization appealed the denial to the highest officer of
the Carrier designated to handle such disputes. However, the dispute
remains unresolved, and it is before this Board for final and binding
determination.
FINDINGS:
The Board upon the whole record and all the evidence finds that
the employees and the Carrier are employees and Carrier within the meaning
of the Railway Labor Act, as amended, 45 B.S.C. §§151 et seg. The Board
also finds it has jurisdiction to decide the dispute in this case. The
Board further finds that the parties to the dispute, including Claimant,
were given due notice of the hearing in this case.
A threshold issue in this case is the timeliness of the Carrier's
notice of investigation. Article 14 (d) of the applicable agreement provides
that "[N]o discipline shall be assessed that involves any matter of which
the Carrier's head of department had knowledge sixty days or more." The
Carrier contends that its May 7, 1987 notice of investigation was timely
inasmuch as Claimant did not file his Form 2611 until March 9 and the
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Carrier did not receive medical reports concerning the incident until -
March 24. However, the record clearly establishes that Claimant informed
the Roadmaster orally on March 6, 1987 that he had sustained a personal.injury the previous day. Thus, responsible Carrier officials had knowledge
on March 6 of what they considered to be Claimant's wrongful conduct.
Accordingly, the Carrier's May 7 notice was untimely.
It is a proposition too well established for citation to authority
that time limits in discipline cases are strictly observed. Inasmuch as
the Carrier failed to meet the time limit in this case applicable to the
notice of investigation, the discipline must be set aside.
AWARD
Claim sustained.
The Carrier shall make this award effective within thirty days of
the date hereof.
Zr_ ~
William
E.
Fredenberger~r.'% ='
Chairman and Neutral Member
R.
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& 9",-/ - S,
z &~,,
0. Naylor S. A. Hammons, Jr.
Carrier Member Employee Member
DATED: Ju.~
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