"Upon review of the transcript, (Carrier) Supervisor Castle who charged Mr. Cox, reveals that he was initially made aware of possibly anything going on (with Claimant's alleged injury) was on the 15" day of March 2007 while Supervisor Castle was traveling on the railroad following Mr. Cox during a track inspection. Apparently Mr. Castle asked Mr. Cox why he wasn't using a machine normally used to tighten track bolts during his track inspection. The Claimant told him he had hurt

his shoulder while he was at home ".

"The Claimant told Mr. Kirkland that he felt pain' while attempting to repair a CSXT vehicle he had been assigned by the Carrier to operate in order to perform his duties of track inspection. According to Supervisor Castle, Mr. Kirkland was obligated, as a Carrier official, to document at that time what had occurred. Yet Mr. Kirkland maintains that the Claimant did not talk to him about his injury. However, a review of the Claimant's cell phone record confirms the, fact that he called Kirkland's cell phone number and they talked for about 15 minutes. The Claimant called Mr. Kirkland again at 6:03 p. m. and talked for 2 minutes. It appears suspicious that Mr. Kirkland does not recall having either of these conversations... The Carrier witnesses were onlypresent to testify negatively against Mr. Cox and neither Special Agent ONeil or Track Inspector Karolchyk provided relative testimony against the Claimant. For example, CSXT Special Agent ONeil attempts to suggest that alcohol was used by Mr. Cox while the CSX vehicle (now under discussion) was being repaired. There is no proof of that and the investigation was not held to determine alcohol consumption by Mr. Cox ".

When asked why it took two months to "get" the PI-lA report, the Claimant asserted that:

"At first, me and Mr. Kirkland tried to keep this covered up. We did not think the injury was as bad as it turned out to be and hoped it would go away .... ".

Finally, the Vice Chairman contended: "The fact of the matter is, Mr. Cox did injure himself on March 2, 2007 and he did relay the information to Supervisor Kirkland on March 2 who in turn agreed with Mr. Cox not to=fzll out an injury report at that time because neither of them knew the extent of his injury. Mr. Cox never refused to fill out an injury report ".

In its December 10, 2007 denial to the Organization's appeal, Carrier confirmed the 3

Continued efforts to resolve the dispute on the property were not successful. Therefore, it was properly placed before the Board for adjudication.

Careful review of the transcript reveals that all of the Claimant's due process rights as provided for under the Agreement were fully protected and the hearing was held conducted in a fair and impartial manner. The investigation was originally scheduled for May 29, 2007, however, it was postponed by letters dated May 24, 2007 and August 4, 2007. The Claimant acknowledged that he received the original notice, as well as the follow-up notices, and when the investigation convened on August 9, 2007, both the Claimant and his duly authorized representative were present throughout the proceedings.

Turning to the merits of the dispute, the record reveals the following sequence of events: Engineer of Track Castle indicated that he first became aware of the Claimant's problem on March 15, 2007, while hi-railing with Roadmaster Kirkland. Mr. Castle stated that they were following the Claimant during a track inspection, and he noticed that Mr. Cox was not using the impact wrench to tighten bolts. When he was asked why, the Claimant stated, unequivocally, that he had "hurt his 4

MB CASE NO. 42 UNION CASE NO. B 17807607 COMPANY CASE NO. 12(07-1116) shoulder" the previous week while he was "at home working on his truck". Thereafter, on March 19, 2007, the Claimant requested a vacation day because he was "going to the doctor because of his shoulder". On March 20, 2007, the Claimant informed Mr. Kirkland that his doctor "gave him a prescription and prescribed therapy for his shoulder" and requested vacation time.

Mr. Kirkland reported that he did not speak to the Claimant again until March 30, 2007, when the Claimant called to tell him that he was "out of vacation and out of money" and was "thinking about changing" his original statement from working on "his truck" to working on a "company truck". According to Mr. Kirkland, throughout the May 30 conversation the Claimant's "speech was slurred" and at times, he was "incoherent". Mr. Kirkland advised the Claimant to "think about what he wanted to do" and inform him of same.

According to Mr. Kirkland, he did not speak to the Claimant again until April 19 and 24, 2007 when the Claimant informed told him that "tests were being run" and he would let Mr. Kirkland know the results. Thereafter, on April 27, 2007, the Claimant left a message for the Roadmaster that: "surgery is going to be required" and an "insurance company will be investigating" [the injury]. Finally, on May 2, 2007, Supervisor Castle personally spoke with the Claimant who reported that he "hurt his shoulder around March 1, 2007", while trying to "fix a bearing on the company truck". Mr. Cox went on to contend that the truck started "shaking" and that he tried to fix it, but to no avail. According to the Claimant, he did not have any other transportation, so he decided to drive the truck home. Of note, during his conversation with Supervisor Castle, the Claimant reiterated "several" times, that he was "out of money" and that his "family came first". At the end of that conversation, the duo agreed that Mr. Cox would come in the following day, May 3, to complete the requisite paper work however, he did not actually due so until May 4, 2007.

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