Org. File: D-Stanton Case No. 6
Carrier File: 1-00464 Award No. 6
PUBLIC BOARD NO, 5721
P RT Soo Line Railroad Company
TO and
DISPUTE: Brotherhood of Locomotive Engineers
STATEMENT OF CLAIM:
"Request on behalf of Soo District Engineer S. J. Stanton for
reinstatement to service, payment for all time lost and that his record be cleansed of
reference in connection with his dismissal from service for the alleged violation of Rules
1.2.7 and 1.6 of the G.C.O.R. and allegation of being absent under false pretenses.
STATEMENT OF FACTS:
In 1992 the Claimant reported to the Carrier that he had
suffered an on-duty injury on March 28 when he fell on oily and loose walkway planks on
the turntable at Thief River Falls, Minnesota. He completed the required forms and
subsequently was restricted from working as an Engineer by his physician. He remained off
into May of 1995.
In connection with the Claimant's personal injury suit, the Carrier hired a private
investigator to observe the Claimant's activities. On May 1, 2, 13, and 14, 1995, the
investigator videotaped the Claimant's activities.
On May 18, 1995, the Carrier directed the following notice to the Claimant:
"Please arrange to appear for formal investigation/ hearing scheduled to be
held at the Holiday Inn, Board Room, Hwy 29 and 194, Alexandria, Minnesota
at 0900 hours of Thursday, May 25, 1995.
"The purpose of this investigation/hearing is to determine the facts and
circumstances and to place your responsibility, if any, in connection with your
being absent from March 28, 1992 until the present time under alleged false
pretense of injury sufficient to prevent you from working.
"You may be represented in this investigation/hearing as is provided in your
schedule rules and agreements. Any reasonable request for postponement must
be made a sufficient time prior to the date of the investigation."
Subsequent to the investigation the Claimant was dismissed by virtue of the following
letter:
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"Notice of formal investigation/hearing was issued you under date of May 18,
1995 in connection with the occurrence outlined below:
'to determine the facts and circumstances and to place your
responsibility, if any, in connection with your being absent from
March 28, 1992 until the present time under alleged false
pretense of injury sufficient to prevent you from working.'
"Formal investigation/hearing was conducted by Hearing Officer R. L. Huettl
on July 6, 1995 to develop all facts and circumstances in connection with the
referenced charges. At the conclusion of that investigation, Hearing Officer
Huettl indicated his determination that the transcript of investigation/hearing
record as a whole found you responsible for being absent from March 28,
1992 to this date under false pretense of injury sufficient to prevent you from
working. Testimony clearly establishes your failure to provide all facts and/or
information in connection with this injury. Facts do not establish your need to
be absent as a result of this injury and you are therefore absent under false
pretense, in violation of Rule 1.2.7 and Rule 1.6 of the General Code of
Operating Rules.
"In consideration of this decision of the Hearing Officer stated above and upon
review of your past personal record, you are hereby dismissed from
employment with the CP Rail System effective immediately. Please arrange to
return all company material to your supervisor, along with switch keys and
any company rule books.
FINDINGS: This Board, upon-the whole record and all of the evidence, finds that the
Employees and Carrier involved in this dispute are respectively Employees and Carrier
within the meaning of the Railway Labor Act as amended and that the Board has jurisdiction
over the dispute involved herein.
OPINION OF THE BOARD: It is the conclusion of the Board that the Carrier did not
provide substantial evidence to prove that it was not medically necessary for the Claimant to
be off from work. While the videotapes raise great suspicion, they do not, without the
benefit of a contemporaneous medical examination, go far enough to prove the Claimant did
not have legitimate medical restrictions.
Accordingly, the Claimant is entitled to reinstatement. However, because he was
physically incapacitated, there shall be no back pay..
'pLa Nb.
SAD I
Larry E. Nooyen
Carrier Member
Dated this ~~ day of October, 1997.
Case No. 6
Award No. 6
Page 3
AWARD
The claim is sustained to the extent indicated above.
Gil Vernon, Chairman and
Neutral Member
Arim Coy
00rganiczzationn Member