PUBLIC LAW BOARD NO. 5850

Award No.

Case No. $2 ,'8

(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE ;
(The Burlington Northern Santa Fe Railroad (Former
(ATSF Railway Company)

STATEMENT QF CLAIM :

1. The Carrier violated the Agreement on September 24, 2007 when

Claimant, 0.0. Mealancon (16t1190) was assessed a Level S 3Q-Dory

Record Suspension for violation of Maintenance of Way Operating

Rules 1.1.3-Safety; Accidents, Injuries and Defects; arid 1.2.5-Safety;

Reporting when the Claimant failed to Immediately report Injury

sustained on August 31, 2007, arid;

2. Asp a consequence of the violation referred to In

part

1 the Carrier

should reinstate the Claimant with all

senloft, vacation,

rights

r ,:; . .

unimpaired and pay for ail wage loss commencing September 24,

2007, and remove any

mention

of discipline from his record.

Upon the whole record and ail the evidence, the Board finds that the parties herein are Carrier and Employee within the moaning of the Railway Labor Act, as amended. Further, the Board is duly constituted by Agent, has jurisdiction of the Parties and of the subject matter, and the Parties to this dispute were given due notice of the hearing thereon.

On August 31, 2007, Claimant, whine moving a crossing plank consisting of two ties bolted together, felt some pull on his back but did not report it Immediately as he thought it was nothing but a sprain that would subside by the time he reported back to work (August 31, 2007 was a Friday, his rest days were Saturday and Sunday and Monday was the Labor Day holiday).

PLB NO. 5850
Page Z Award No.

Case No. 328

instead of abating, the pain Increased and at about 1:00 AM on September 3, he went to the emergency room at the local hospital. The diagnosis was muscle spasms. Claimant also stated he called his Supervisor's number at about 1:00 AM on September 3. He rived no answer, but he contends he left a message regarding the injury.

Because the Carrier believed he did not promptly report the injury on Friday, August 31, 2007, he did not comply with the Rule of promptly reporting an Injury.

The Carrier convened an investigation:

"...for the purpose of ascertaining the

fates and

determining your

responsibility, if any, in

connection with your alleged failure to immediately report your personal injury that took place at Fruitland Road Crossing on the Harbor Sub Division on Friday, August 31, 2007 at approximately 0930 hours, while assigned as Section Gang Trackman on gang TSEC074Z.

You may arrange for

representation in line witty the provisions of agreement or schedule governing your working conditions; and yore may likewise arrange for the attendance of any witnesses you desire, at your own expense."

Following the Investigation, the Carrier on November 1, 2M6, wrote !Claimant to advise he had been assessed. a Level S record suspension of 30 days and a probationary period of 3 years, warning !heat if he would commit another serious Rule violation during this 3 year period, he would be subject to dismissal:

There is in existence a rule about soft tissue typo injury which allows an employee 3 days !n which to report the injury to his Supervisor if It did get worse.

Claimant suffered the sprain or strain about 0930 AM on August 31, 2007, and went to the emergency room around 1:00 AM on September 3. He attempted to call his Supervisor before ha went to the emergency morn but hire Supervfor was on vacation, away from his Cell phone. The emergency morn doctor diagnoserd hint injury as a strain, recommended one week of light duty and gave him some pain pills.

Page 3

PLB NO. 5850

Award No.
Case No. 328

in this instance, Claimant did react within 3 days as you do trot count the frst day.

The claim is sustAined.

Claim sustained,

AWARD

ORDER

This Board, after consideration of the dispute Identified above, hereby orders that an award favorable to the Clalmant(s) be made, The Carrier is ordered to make the award offective on or before 30 days following the date the award is adopted.

6&~

Robert l.. Nicks, Chairman A Neutral Member

Q"

'q

David 0. Tanner, For the Employees

Dated: 1D/(~ ~G~

Samantha ftogers, For ttq,j' artier