(Brotherhood of Maintenance of Way Employes PARTIES TO DI8PUTE: (The Burlington Northam Santa Fe Railroad (Fomwr (ATSF Railway Company)

 STATEMENT OF CLAIM :








Upon tire whole record acrd all the evidence, the Board finds that the parties herein are carrier and _employee within the meaning of the Railway Labor Act, as amended. Further, the Board b duly constituted by Agreement, has jurisdiction of the Parties and of the subject matter, end the Parties to this dispute were given due notice of the hearing thereon. On January 30. 2002. the Carrier wrote Claimant as follows:


Page 2 PL,B N o · SB Award No. Zo 4
 Case No. 204

 terminating his services based upon the substantial evidence criteria which Is the rule of thumb In this Industry,

 The Carrier's first awareness of Clalmant'a arsged Injury that occurred $*mod= in November or September of 1998, was when the Claims Departnrnt received a copy of the document Claknant's attorney filed In court sometime In December, =001. No Injury report was filed in 1990, nor has any injury report been filed to date. The only record Carrier b aware of regarding the alleged Injury is in this transcript and In the sun filed under FELA.
 Claimant b a 26 year veteran of this Carrier, and he has suffered minor Injuries in the past so that he cannot plead ignorance of the roqulrenrent to promptly file an Injury report. His reason for not filing was the Roadmaslar at that time threatened him with _ dismissal If he did file. This is an affirmative defense. An admittance that he violated the Rule, but offering a reason as to why he did so.
 In all discipline matters, the burden of proof is on the shoulders of the Carrier, but when an afflmtatlve defense b offered, the burden of proof shifts to the shoulders of the Claimant This has not occurred. Claimant did not substantiate his plea.
 Falling to timely file an Injury report is a serious violsdon which, when It occurs, !s not treated lightly by the Carrier. In fact, k Is considered a Level 8 violation and this Is Claimant's second Level 8 violation in three years.



    Claim defiled.


                        DRDE B

Page s pt"", NO . S8 award No. 204
                                          Case No. 204


This Board. after consideration of the dispute identified above, hereby orders that an award favorable to the Cisimant(s) not be rrrda_
              Robert L Nicks, Chairman 3 Neutral Member


r i,S,l' m.~
 Rick B. Wehrll, Labor Member Thomas AA. Rohling, Carrier mbar
 Dated:

ORGANIZATION MEMBER'S DISSENT

TO

CASE NO. 204 OF PUBLIC LAW BOARD 5850


It has been said more than once that one school of thought among railroad industry arbitration practitioners is that dissents are not worth the paper they are printed on because they rarely consist of anything but a regurgitation of the arguments which were considered by the Board and rejected. Without endorsing this school of thought in general, it is recognized that a dissent is required when the award is not based on the on property handling. Such is the case here.


In this casethe! laimant was--charged with-and-dismissed--for-alleged late reporting and falsification of an injury allegedly sustained by him on November 1, 1998, while operating track equipment. Conspicuously, without addressing the charge -of falsification of the injury, - which - is accepted by this Board Member as an acknowledgement that the charge was not sustainable in any way, the majority, nonetheless, allowed the dismissal to stand as a result of concluding the Claimant was guilty of failing to submit an injury report in a timely manner as charged. While this may or may not be a dismissable offense under normal circumstances, the point here is that this situation did not involve normal circumstances.


The mitigating factor in this case is the Claimant was threatened by his supervisor that if he submitted an injury report in line with the company rules, he would be fired. In this regard , the Neutral of this Board indicated the following:


      "This is an affirmative defense. An admittance that he violated the Rule, but offering a reason as to why he did so. In all discipline matters, the burden of proof is on the shoulders of the Carrier, but when an affirmative defense is offered, the burden shifts to the shoulders of the Claimant. This has not occurred. Claimant did not substantiate his plea."


The problem with this logic is the fad the Claimant's explanation why he did not file an injury report, i.e., why he did not comply with the rule, was accepted as fact b

all concerned . That is, there is absolutely no testimony contained 0 the hearing transcript or documentation of any kind where the Claimant's explanation was challenged in any way. As such, there was no shifting of the burden of proof responsibility to the Claimant as the Neutral indicates. This is not merely an error in judgment, but it also represents a technical error associated with burden of proof responsibilities due to an obvious misapplication and misunderstanding of affirmative defense principles.


                                                        0

In view of these facts and circumstances, this Board will, once again, have to be satisfied with only two (2) Board Member signatures on this award because my signature, if affixed thereto, may be construed as an acceptance by the Employes that the decision is procedurally acceptable and appropriate, which is simply not true.

                                  Yours truly,


                                  R. B. Wehrli

                                  Organization Member


12-10-02
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