SPECIAL BOARD OF ADJUSTMENT NO. 1048
AWARD N0.131
Parties to Dispute:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim:
Claim in behalf of C. E. Smith for reinstatement to service with seniority, vacation and
all other rights unimpaired and pay for time lost as a result of his dismissal from service
following a formal investigation held on January 13, 2003, in connection with his
violation for Rule N for failure to properly report a personal injury that allegedly
occurred on October 28, 2002, and making false and conflicting statements in conection
with this alleged injury.
(Carrier File MW-DECR-02-46-LM-336)
Upon the whole record and all the evidence, after hearing, the Board finds that the parties herein are
carrier and employee within the meaning of the Railway Labor Act, as amended, and this board is duly
constituted by agreement under Public Law 89-456 and has jurisdiction of the parties and subject matter.
AWARD
After thoroughly reviewing and considering the record and the parties' presentations, the Board finds that
the claim should be disposed of as follows:
The record contains substantial evidence that Claimant failed to properly report the injury and violated
Rule N. Claimant testified that he realized he had injured himself on October 28, 2002, and that he did
not report it because he wanted to keep his and the gang's safety record clean.
However, Carrier did not prove by substantial evidence that Claimant falsified the injury report that he
filed on November 19, 2002. Claimant was throwing plates on October 28. There is no dispute that after
he returned to the motel, he experienced such pain in his leg that three coworkers had to help him leave
the motel and get into his car. Although two of the coworkers speculated that Claimant may have been
experiencing blood pressure problems or a heart attack, they had no medical training and their
speculations are not substantial evidence that Claimant did not injure himself on duty that day. A third
coworker testified that Claimant complained to him of pain in his leg while he was throwing plates that
day. Claimant testified that he experienced some pain while throwing plates and that the pain became
severe at the motel. Given the state of the record, we are unable to say that Carrier proved by substantial
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evidence that Claimant falsified the injury report.
Claimant had 20 years of service and the Track Supervisor testified that he was an excellent employee.
Considering all of the circumstances, we hold that the Rule N violation that Carrier proved does not
justify the penalty of dismissal. Claimant shall be reinstated to service with seniority unimpaired but
without compensation for time held out of service.
M. H. Malin
Chairman and Neutral Member
D. holomay D. L. Kerby
Orgam ion Member Carrier Member
Issued at Chicago, Illinois on September 29, 2004