PUBLIC LAW
BOARD NO
. 5942
Case No. 33 Award No. 33
PARTIES Union Pacific Railroad Company
to and -
DISPUTE: Brotherhood of Locomotive Engineers
STATEMENT OF CLAIM:
Request that the level 2 discipline be removed
from Engineer G. J. Anderson's record and that
he be-paid-for all-:tzme:_los'= and vacation;=rights,
unimpaired.
FINDINGS: By letter dated August 13, 1996, the Claimant was directed -
to attend an investigation "in connection with your alleged personal -injury of August 6, 1996, near Bryan, Texas, while working as an
engineer on Train OSPOG-06 at approximately 3:00 p.m." Following two
postponements, the investigation was held on October 2, 1996. On
October 9, 1996, the Claimant was advised that he had been found
guilty of violating a number of the Carrier's rules and he was assessed
discipline. This matter now is before the Board.
The significant events causing this claim to arise occurred on
August 6, 1996. The Claimant was the Engineer on a train operating
from Spring to Taylor, Texas. He completed his run after he put his
train in a siding at Bryan, Texas. He and the crew were transported
to the Claimant's home terminal at Taylor. When he arrived there, the
Claimant informed the Supervisor of Train Operations, T. A. Sopko
("Sopko"), that he was not feeling well, had a "bad headache". and had -
breathed in fumes from one of the engines in his consist. Spoko then
asked the Claimant if he wanted to go to the hospital for treatment.
The Claimant then was picked-up by an unidentified person and was
taken to an emergency room to be treated in Smithville. The Claimant
then continued under various medical treatments and did not complete
his injury/illness report until August 9.
After a careful review of the transcript of the hearing held on
this matter, the Board finds that the Carrier's officials, on the
property, did not handle this incident in a reasonable fashion. While
one could argue that the Claimant should have filled out a report when
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he reported to Sooko, we have decided that in view of the Claimant's
acutely poor physical condition at that time (as acknowledged by the
Carrier's official), it would be unfair and inappropriate to discipline
him because of his failure to immediately fill out a report. The
Carrier's officials, on the property, clearly overreacted under the
circumstances. There was no evidence that the Claimant was attempting
to hide or deceive the Carrier. He clearly was i11. He complained of
having inhaled exhaust fumes. Because the cause of his complaint could
not be immediately determined, should not have effected the actions of
the Carrier's officials.
Last, while the organization did not pursue procedural arguments
on the property, the Board notes that the investigation also had serious
flaws. For example, the Carrier's officials, on the property, did not
follow its "Discipline Policy." The investigating officer recessed
the hearing to allow .the Carrier's officials to complete certain forms
that are a part of the Carrier's policy. These forms, of course,
should have been completed at the proper time.
Our holding in this case should not be construed to mean that
injuries need not be reported promptly, pursuant to the Carrier's
rules. It is of utmost importance for the protection of the employee,
to prevent injury to other employees or the public, and to decrease
the Carrier's liability, that compliance with this rule is mandatory.
On the other hand, employers also have a responsibility to not apply
rules by rote. Individual facts and circumstances of each case must
be considered in a reasonable fashion. Here, the Claimant was acutely
ill. In view of his physical condition, that he did not immediately
complete the required documentation should not be considered a fatal
error.
In summary, both on the merits and on the procedure, we hold
that the Carrier was arbitrary and capricious in this case.
PLB No. 5942 C-33/A-33
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The claim is sustained.
pujA No-
33
AWARD
~~/ e~71"
jIm McCoy Ec ar Mues ig . A. Banniste
Organization Member Neutral 24e er Carrier Member
Dated: </