PUBLIC LAW BOARD NO. 6113

Case No. 3 Award No. 3

PARTIES Brotherhood of Locomotive Engineers,
to and -
DISPUTE: Paducah & Louisville Railway, Inc.

STATEMENT OF CLAIM:

Claim of Paducah & Louisville Railway Engineer J. S. wholey for removal sixty (60) days suspension with

all notations of discipline expunged from personal -

work record and compensation for all time lost for -

the alleged violation of P&L Operating Rule 840 in

connection with the injury to left shoulder at 6:OOa.tci.

on Friday, October 31, 1997.

FINDINGS: This is a case that arose because of an alleged personal injury. The Board finds that a chronological sequence of significant events is instructive to the understanding and resolution of the organization's appeal.
The Claimant Engineer was a member of a coal train crew at the Carrier's West Yard at Madisonville, Kentucky on October 31, 1997. At approximately 7:00 a.m., when he opened the rear door of Locomotive No. 1978, he contends that he twisted his left knee because the door was hard to open. He orally notified a Carrier official of his mishap and completed an injury report, as required by the Carrier's rules, that same date. After being asked by a Carrier official at the time whether he needed to see a physician, the Claimant thereafter did not seek medical assistance.
On November 19, the Claimant told Senior Trainmaster J. P. Deming
("Deming") that, when he injured his knee on October 31, he had also
injured his left shoulder. Deming testified, and it was not disputed,
that he told the Claimant that he should amend his October 31 injury
report to reflect this information.
- Later in the afternoon of November 19, the Claimant and Deming
went to a local hospital emergency room for the Claimant to be
examined by medical officials. Simply stated, the examing doctor
found no significant medical problem, noting however the possibility
of pulled muscles. The Claimant was released for full duty. ,
Au'~ No-3

PLB No. 6113 C-3/A-3
Page 2

When Deming and the Claimant exited the hospital, Deming told the Claimant that he was removed from service pending a formal investiga= tion. Deming testified that the reason he removed the Claimant from service was because the Claimant waited until November 19 to report the shoulder injury.
The Claimant was then directed to appear at an investigation "to develop the facts and determine your responsibility, if any, in connection with your allegedly sustaining a personal injury to your left shoulder at about 6:00 a.m. Frida_r October 3, 1997 at Madisonville, Kentucky and your alleged failure to properly report this alleged injury." Subsequently, the Carrier found the Claimant guilty as charged and he was assessed the discipline of a sixty (60) day suspension from November 19, 1997 until January 18, 1998..
The Organization contends, as a threshold position, that the Claimant did not receive a fair and impartial investigation. The Board finds that, while the Hearing officer may have been somewhat restrictive during the proceeding, the essential facts were by one means or other developed. We do not find that the way the investigation was conducted was prejudicial to the Claimant.
With respect to the merits, the Board concludes that there is no proper basis for finding the Claimant guilty.
Two Rules are applicable to the case. Pule 31 of the Agreement in pertinent part reads:

Section A. General Requirements

1. An employee shall not be discharged, suspended or otherwise disciplined without just cause and without a fair and impartial hearing, except that an employee may waive a hearing in accordance with Section B(2) of this Rule.

2. An employee sha,7.l not be withheld from service ,

pending hearing except in cases management determines

to be serious, such as, but not limited to theft,

altercation, Rule "G" violation, insubordination,

major accidents, serious misconduct and major offenses

whereby the employee's retention in service could be

hazardous.

4,,,o Na- 3
~PLB No. 6113 C-3/A-3
Page 3

Paragraph 3' of P&L Operating Rule 840 reads as follows:

Employees must make an immediate oral and written report to the supervisor or employee in charge of any personal injury suffered while the employee was on duty or on company property. Upon receipt of the report, the employee in charge of the supervisor, in

turn, must make prompt report of the injury to the -

appropriate officer. -The injured employee must furnish

the written injury report on the prescribed form, or

if the injured employee is unable to do so, the required

report must be furnished by the supervisor or employee -

in charge.

We now will address Deminq's action to relieve the Claimant from

duty on November 19. The Hoard notes that, historically, Carriers
have had considerable leeway to exercise managerial discretion to -
withhold employees from service, when applying the provisions of Rules
like Rule 31. However, the Claimant's actions here did not rise to
the level normally contemplated by the discipline Rule. Deminq's
reason for relieving the Claimant, namely that he did not report his
allegedly shoulder injury on October 3, was not reasonable.
With respect to the charge itself, the Board recognises that the Carrier must strictly enforce operating Rule 840 not only to protect itself from liability, but also to protect its employees and, in many instances, the general public.
However, the Carrier also has a responsibility to apply its Rules in a reasonable fashion. In this instance, the evidence clearly shows that the locomotive door which the Claimant opened on October 31, leading to his alleged knee injury was hard to open and, as the evidence shows, may have contributed to the knee injury. However, that element _is _not before _the Board, what is at issue is the Claimant's failure to report the alleged shoulder injury on October 21.
Certainly, there are some injuries that may not become noticeableuntil later The Claimant, according to the testimony adduced at theinvestigation, was not incapactated for work. Deming's more reasonable course of action would have been to let the Claimant provide a written report of the alleged injury, rather than relieve him from duty.
v AWo Ivo . .3 _
' PLB No. 6113 C-3/A-3
Page 4

'Following a review of the written report, if the Carrier had reasonable

cause to suspect impropriety on the part of the Claimant, these matters could have been subject to an investigation at that time.

A9lA PD

The claim is sustained.

3er Sh phe ~ Ecke and Muess' g _~._ ,. y~

Carrier ~emb~ Neutral Ldemb r Employee P7e?Siber

Dated: I- 1 E.I--S'9