PUBLIC LAW BOARD No. 5850

Award No. 205

Case No. 206

PARTIES TO DISPUTE : (Brotherhood of Maintenance of Way Employee

(The Burlington Northern Santa Fe Railroad (Former (ATSF Railway Company)

STATEMENT OF CLAW:

1. The Carrier violated the Agreement on September 4, 2001, when it

issued Mr. O. P. Mitchell, a 30-day record book suspension for

allegedty violating Maintenance of Way Operating Rules 1.2.5, for

not being alert and attentive, which led to a personal Injury.

2. As a consequence of the violation referred to above, tile Carrier

shall remove any mention of the Incident from Mr. Mitchell's

personal record. and make him whole for any wages lost, per the

Agreement

Upon the whole record and alt the evidence, the Board finds that the parties herein are carrier and employee within the meaning of the Ralkasy Labor Act, as amended. Further, the Board is duly constituted by Agreement, has jurisdiction of the Parties and of tire subject matter, and the Parties to this dispute wen given due notice of the hearing thereon. On July 111, 2001, the Carrier wrote Claimant setting an Investigation:

"...In connection with your alleged failure to be alert and attentive allegedly causing personal Injury to yourself on Tuesday, July 10, 2001, at approximately 1300 hours, at 8tronghurst Illinois, and your alleged failure to property report alleged personal injury, and your alleged falure to nofffy your supervisor before seeking medical attention, while assigned as Machine Operator."

After the Investigation, the Carrier assessed Claimant's discipline as follows:

Page 2 PL 8 Pi D. 543 SD Award No. 20'r
Case No. 206

....,concerning your failure to be alert and attentive allegedly causing personal Injury to yourself on Tuesday, July 10, 2001, at approximately 1300 hours, at Sbonghurst, Illinois, and your failure to properly report alleged personal injury, and your failure to notify your supervisor before seeking medical attention, while assigned as Machine Operator, you an issued a Level S Record Suspension of thirty (30) days for violation of Maintenance of Way Operating Rule 1.25, Reporting." The only portion of the aforequoted discipline letter this Board is In accord with is that portion reading: "...your failure to notify your supervisor before seeking medial attention ...." There was absolutely no evidence offered to support the charge of his "failure to be alert and attentive causing personal injury", particularly when the discipline notice completes the aforoquoted fine by stating his Injury occurred on July 10, 2001. it was clearly established during the hearing that Claimant made an error In completing his Injury report on July 13. He was not Injured on the tenth. On that day, he went to a chiropractor and had papers to prove It. In fact, on July 10, Claimant did not work. In fact, he did not call in. He simply did not show up for work. The payroll records conflrtned he was absent without authority on July 10, 2001, and his disciplinary record reflects he was assessed a formal reprimand for his failure to seek authority for the lay off. Claimant's discipline Is changed to a formal reprimand WO only tit notation that he sought medical attenfion prior to notifying his supervisor. AWARD Claim sustained In accordance with tit Findings. ORDER This Board, after consideration of the dispute identified above, hereby orders that
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Case No. 205

an award favorable to the Claimant(:) be made. The Carrier Is ordered to make the award effective on or before 30 days following the data the award Is adopbd.

Robert L Hicks. Chairman d Neutral AAember

~~, ~ I. -L. -
Rick B. Wehrik Labor Member

Dated: ~fie_, ~. ,3 U~ j UJ Z