BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
 Case No. 163
 and )
 )Award No. 157
 UNION PACIFIC RAILROAD COMPANY )

Martin H. Malin, Chairman & Neutral Member

T. W. Kreke, Employee Member

D. A. Ring, Carrier Member




STATEMENT OF CLAIM:








FINDINGS:
Public Law Board No. 6402 upon the whole record and all of the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given due notice of the hearing thereon and did participate therein.

 On November 29, 2007, Carrier notified Claimant to report for a formal investigation on December 7, 200'1, concerning his allegedly failing to file a personal injury report immediately after the injury occurred. The hearing was postponed to and held on January 9, 2008. On January 16, 2008, Carrier notified Claimant that he had been found guilty of the charge and assessed discipline at UPGRADE Level 2, one day alternative assignment with pay to develop a corrective action plan.



required him to walk three or four miles on uneven terrain. Claimant noticed that his heel was sore and he so remarked to the Manager Track Maintenance. The soreness persisted and Claimant sought a referral through his health insurance to a specialist. The earliest appointment he could obtain was for November 7, 2007. At the appointment, x-rays revealed that Claimant had sustained a stress fracture. He reported the injury to the MTM the same day and the MTM had him complete the required form the following day.

 Carrier maintains that Claimant was required to report the injury and complete the form on October 20, the date of the injury. However, Claimant testified that on October 20, he did not know he had been injured. He related, "I'm an old guy. I get up in the morning; everything hurts, everything was just sore, so I went home." According to Claimant, he was unaware of the injury until the doctor advised him of the X-ray results on November 7.

 Given the strenuous nature of Claimant's job, his attributing his heel discomfort to general soreness rather than a personal injury seems eminently reasonable. Most significantly, the MTM corroborated Claimant in every respect. Specifically, the following exchange took place between the MTM and the Hearing Officer:







The record supports only one conclusion. On October 20, Claimant had no reason to realize that he had sustained a personal injury. He did not learn that he had sustained a personal injury until he was advised of the X-ray results on November 7. As soon as he was so advised, he promptly reported the injury to the MTM and, at the MTM's direction, completed the required form the following day. There is simply no evidence in the record to support the finding of guilt made on the property.




      PLB No. 6302 Case No. 163

      Award No. 157


                        ORDER


The Board, having determined that an award favorable to Claimant be made, hereby orders the Carrier to make the award effective within thirty (30) days following the date two members of the Board affix their signatures hereto

                    Martin H. Malin, Chairman


D. A. Ring Y T. VV. Kreke
 Carrier Member Employee Member

      Dated at Chicago, Illinois, June 23, 2009


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