a
NA'I-x OVAL MED
x
ATZ ON BOARD
RUBLZ C
LA'W' BOARD NO. s47~9
1
BROTHERHOOD RAILWAY CARMEN OF I
THE UNITED STATES AND CANADA I
I
and I
t
NORFOLK AND WESTERN RAILWAY COMPANY 1
I
I
(Revised)
AWARD NO, 15
DOCKET NO, 16
John C. Fletcher, Chairman & Neutral Member
R. P. Wojtowicz, Organization Member
T.
9.
Malloy, Carrier Member
Hearing Date - April 25, 1990
Statement of Claims
1. That the N & W Railway Company violated the
controlling Agreement of June 1, 1939, as subsequently
amended, when on November 4, 1988, Carman J. Hector cqass
givqn.--a formal investigation which resulted in his
dismissal effective December 30, 1988.
2. That the investigation was improperly arrived at
and represents, inequitable, arbitrarily, capricious
and unjust treatment within the meaning end intent of
Rule 3 of the current controlling Agreement.
3. That because of such violation and unjust action,
the Norfolk and Western Railway Company be ordered to
delete discipline assessed in its entirety and
reinstate Carman D. J'. Hector to sarvica will all
seniority rights, vacation rights and all other
benefits that are a condition of employment,
unimpaired, with compensation for all lost wages, plus
6% annual interest and reimbursed for all losses
sustained account coverage under Health and Welfare and
(Revised)
PLB No. 4769 Award No. 16
Carmen b NAW Docket Id
(Revised)
Life Insurance Agreements during the time held out of
service until reinstated retroactive to December 30,
1988.
Findings
Public Law Board No. 4789, upon the whole record and
all of the evidence, finds and holds that the Employee and the
Carrier are employee and carrier within the meaning of the
Railway Labor Act, as amended; and, that this Board has
,jurisdiction over the dispute herein; and, that the parties were
given due notice of the hearing thereon and did participate
therein.
On September 28, 1988, Carman David Hector inured his
neck while working outbound Train 182 in the train yard at East
Decatur, Illinois. He reported this injury as required by
Carrier regulations. On October 4, 1988, Mr. Hector was cited
for an investigation on the injury. The investigation notice
alleged a presistence in following unsafe work practices in
sustaining nine personal injuries in nine years of service. The
injuries listed were:
Date Type of Inury
5-17-80 Bruised back of left leg and left elbow
12-14-80 Bruised palm of right hand
7-30-81 Hit index finger of left hand
12-04-81 Bruised left hand
12-01-82 Bruise on upper right hip
5-29-84 Bruised big toe left foot
7-15-85 Pain in middle back
10-0'3-87 Bruised right index finger
9-2b-88 Pain in neck
At the investigation, conducted on November 4, 1988,
Carrier adequately developed Claimant's initial responsibility
for the injury reported on September 28, 1988. It also
'introduced statistical evidence on injury experience of five
employees above and below Mr. Hector. This evidence, it to
argued, demonstrates that Claimant refused to work safely and has
a chronic pattern of laxity, carelessness and negligence.
Carrier contends that if Hector is allowed to remain in service
end continue in his negligent and reckless ways, it would be
simply a matter of time before he seriously inured himself or a
fellow employee.
Matters connected with the triggering incident, the
September 28, 1988, neck injury* were not seriously disputed by
Page 2 of 4 pages.
(Revs sad)
pLS No, 4789 Awsrd No. J3
German & N&W . Docket
Jd
(Revised)
the Organization. However it did contend that this injury and
all of the others listed on Claimant's personnel record were
minor, to say the least, and are of the type that Carman
experience routinely as a result of the nature of the work Carman
are required to perform. It has not been shown that any of the
listed injuries were caused by carelessness or negligence on
Claimant's part, it is argued.
It is the view of this Board that statistical data, of
the type developed in this case, may be useful in demonstrating
that one individual has experienced more instances of personal
injury than other employees located near him on the seniority
roster, but, without more, the data is insufficient when,
standing alone, it is used as the primary basis for the
administration of discipline of dismissal on a charge of
persistence in following unsafe work practices, which in our
opinion seems to be the case here.
For example, the charges placed against Carman Hector
read
in
part;
"You are hereby notified to report ... for a formal
investigation to determine your responsibility in
connection with your carelessness and negligence .
while working as a Carman, you struck your hard hat
against a train line bracket, inuring your neck, while
bending forward to inspect a draft gear,
and
our
n$rais,lence in folJQwin%r unsafe work 2ractices as
evidepcad by your sarvirst record .. "
(Underscoring added.)
Much of the investigation was devoted to development of evidence
on Hector's accident experience in comparison with the experience
of several of his "peers." The way this was done was to tabulate
all of Hector's injuries and those of the group he was being
compared with. The seriousness of each injury was not
distinguished nor is their cause known. Critically, though,
.-there was no real development of evidence that any of Hector's
previous injuries resulted from a "persistence in following
unsafe work practices," the foundation of the second aspect of
the charge under review at the investigation.
The failure to develop evidence on "tMactor's)
persistence in following unsafe work practices as evidenced by
this) service record" causes a critical aspect of the
investigation to be fatally flawed. This in turn requires the
discipline assessed to be modified.. Discipline for the September
26, 1888 injury is appropriate but discipline for persistence in
following unsafe work practices is not appropriate. Accordingly,
Page 3 of
4
pages.
(Revised)
PLB No. 4769 Award No. 15
Carmen & NEW Docket ID
(Revised)
a thirty day suspension shall be assessed for the September 26,
1988 matter. No discipline shall be assessed for the unsafe work
practices charge.
' Mr. Hector is to be returned to service, within thirty
days of the dote of this Award, with seniority and other rights
unimpaired. He shall also be compensated for all wage losses
incurred during the time out of service beyond thirty calendar
days from the date of dismissal, less deductions for any outside
earnings received during that time.
A W A R D
Claim Sustained. Mr. David J. Hector shall be returned
to service within thirty days of the deter of this Award, with
full seniority and other rights unimpaired. He shall also be
compensated for all wage loaners incurred during the time out of
service beyond thirty calendar days from the dote of dismissal.
Carrier may deduct from the payment due nn amount equal to that
of any outside earnings Claimant received while out of service.
Claimant's service record shall be noted accordingly.
O R 0 E R
Carrier shall comply with this Award within thirty days
of the date lndicnt low.
Johns C, her, an & Neutral Member
zo, ~
9. P.
Vjtowiczj~Amployoe Member
T
*,-/
0490e~
1'. R. Malloy, Carrier Member
Dated at Mt. Prospect, IL., this 20th day of November, 1990
Pass- 4 of i pages.
(Revised)