i ,
 PLIBLIC LAW BOARD NO 5850 -


(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM:

      Carrier's decision to suspend Eastern Region Maintenance of Way employee B. E.

      Hernandez front January 2. 1996. through January 23. 1996 was unjust.


      Accordingly. Carrier should now be required to expunge the suspension from the

      claimant's record and compensate hiii for all wages lost from January 2. 1996 through

      January 23. 1996. (Files 02-15-ABl50-13113-9518)


FINDINGS
 Upon the whole record and 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 is duly constituted by Agreement has jurisdiction of the Parties and of the subject matter. and the Parties to this dispute were given due notice of the hearing thereon.
    Claimant was cited for an Investigation to determine his responsibility for failure to report an injury promptly.

    Claimant contends he experienced severe soreness in his hip on December 20, 1995. and reported it to his Foreman during lunch on the same day.

    Tile Foreman testified lie had no recollection of such a conversation on December 20. and the first lie became aware was on December 21 when Claimant advised hull lit the Stall ofihe day that lie had a problem.

PI-6 ND · s9s,
 Page 2 .-sward No. 2

                                                Case No. 7


The Safety Rules stress reporting of injuries or accidents inmiediately to the proper manager. In this instance. tile proper manager would be his Foreman.

Ihlrulgthe Investigation. Claimant's representative asked Claimant's Supervisor if lie thought every instance of discomfort should be reported. and the response was "...if they choose to report it as an injury. it has to be reported ...."

Because Clauiiant's soreness nialiilested itself into a cramped back llluscle. causing aggravation and physical discomfort. but was reported to his Supervisor the nest day. Claimant was charged with and disciplined for filing a late report.

If Claaliant's soreness dissipated with a hot bath and two aspirin. there would not have been a late report. nor any hearing. Not every soreness or muscle ache turns into all injury.

When Claimant's "soreness" manifested into a stiff back muscle hampering his ability to give 100°0. lie reported tile injury. He did so when it became ail liijUrv.

As the Supervisor testified. "...if they choose to regard it as an injury. it bas to be reported ...." When Claimant's soreness became an injury. lie reported it immediately.

Under these circumstances. the discipline is to be expunged from Claimant's record. and lie is to be paid for all tune lost as provided in the Agreement.


                          W,'~


      Claim Sustained.


                          ORDL:R

This Board. after consideration of the dispute identified above. hereby orders that :in award favorable to the Claunant(s) be made. The Carrier is ordered to make the Award elective on or before 30 days following the postmark date the Award is transmitted to the parties.

- - Z 2-,;-

C. F. Foose
 Labor Member

 pL 8 fll D . 5850 .ward No. 7
 Case No. 7

 Robert L. Hicks 7
 Chairman and Neutral klember

 Greg Grid
 Carrier Member