Parties Lo Dispute:








Statement of Claim:
Claim on behalf of J.J Bainter for pay for all time lost as a result of his 30-day actual suspension from service following a fonnal investigation on October 8, 2004, in connection with his violation of Rule N concerning his alleged on-duty injury that was reported on September 15, 2004.

 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 transcript and the parties' presentation, the Board finds that the claim should be disposed of as follows:

 BACKGROUND
J. J. Bainter, the Claimant herein, entered the Carrier's service on September 15, 1976 as a Laborer, and in September, 20041, the month of the incident giving rise to his 30-day suspension, was assigned as a Backhoe Machine Operator on the Carrier's Lake operating division. The Claimant is represented by the Brotherhood of Maintenance of Way Employees.

 All dates noted herein occurred in calendar year 2004 unless otherwise noted.

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The record evidence shows that on Friday September 10'h, the Claimant completed his duties as a Backhoe Machine Operator and went home for his rest days. He returned to work on Monday September 133 completed his daily assignment and went home. The Claimant also worked on Tuesday September 10, and completed his duties without incident. However, on Wednesday

 Seau L I JU In k-
 ._ptemb_-1'zth t al-our 7:30 a,ni., ` e Claimant notified his supervisor that he had sustained an injury on September 10`h. It is undisputed that until the morning of September 15`h, the Claimant had not made any mention of or given any indication of sustaining an injury prior to his leaving the property on September 10". The Claimant completed Carrier Personal Injury Report Form 22 on September 15`h, noting as follows:

      Driving backhoe from stone pile (Huckleys St Muntself) to Willard St (CF Dist). Backhoe started bouncing while driving on Willard St. between Huckley and Madison ST. I felt a catch in lower back. Upon arrival at Willard St. crossing I did some back stretches and felt better. Waking up on 9/13/04 and 9/14/04 noticed pain and stiffness in leg hip. Again after doing stretches felt ok on 9/13/04 and 9/14/04. Waking 9/15/04 had the same stiffness and soreness and numbness in three toes on left foot.


It is undisputed that the Claimant had not reported an on-duty injury with the filing of a Form 22 prior to leaving the property on Sept 10`".

 On September 20th the ~laima:a was directed to attend a formal investigation, which was held on October 8`" in connection with his alleged violation of Rule N. By letter dated October 22"d the Hearing Officer, following his review of the transcript together with evidence admitted at the formal investigation, determined that the Claimant was guilty of the charge, and advised the Claimant that he was assessed a 30-day actual suspension. The Organization took exception to the discipline assessed, and the instant claim for review ensued.

 DISCUSSION
Initially, this Board notes that it sits as a reviewing body and does not engage in making de novo findings. Accordingly, we must accept those findings made by the Carrier on the Property, including determinations of credibility, provided they bear a rational relationship to the record.

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Following a careful review of the record evidence, the Board finds the existence of substantial evidence to support the Hearing Officer's decision and conclusion. The Hearing Officer concluded that the Claimant failed to promptly and properly report his injury prior to leaving the property on September 10th pursuant to Rule N. The Claimant's own testimony and report supports the Hearing

 ~cr.___t_ _ -t.._:__ r_ a-:_ _ __~ I
 villl,Gt a 1.Vrtl.tUJIUt1. In tllla tegalu, a~ tloteu 111 tIIC completed Form 22 above, the Claimant noted that on September 10th, he "felt a catch in his lower back". The Claimant also noted that on September 13th and 14th, he "noticed pain and stiffness" in his left hip and that on September 14th, "the stiffness and soreness remained most of the day." To a reasonable employee in the shoes of the Claimant, his symptoms, beginning with those noted on September 10th, would have signaled the need to complete a Form 22. While the Organization asserts that the Hearing Officer's conclusion is unwarranted, respectfully for the reasons that follow, such assertion is unconvincing.

 TL._ ll..,_,..:.._a:,..., .l,l, ..,t,.:...,. 41_.a 411.. !'n..:__ _._.. . _ ___ ..t_ _ u ttt. vtsamcattvtt maimatu~ Mat Utc W 0.1111N11t INaS u11UC1 tI1C imprubbion that there was no need to file an injury report unless such injury s significant enough to warrant medical attention. This claim runs counter to the clear language of Rule N, which mandates the filing of a written report of the incident giving rise to any injury "[b]efore leaving company premises." Moreover, the Organization did not produce evidence or testimony from any unbiased witness to support this assertion.

 The Organization offers the testimony of witnesses J. Crossland and J. Melton in support of the
 Claimant's case noting that each witness performed work similar in nature to that performed by the

 (`lo;ma,~t .,r7 rh- ~1- .- o~xpeitenC~-u1 -yw.tlo aa 1at._ a _a_ rr__ .___ :.t_-_ . , .. 1 u~y u1ov o ltptut t tct Uatc. rJUwuvu1, nelttu_

r TvII. CIOSSland nor Mr. Melton testified that they failed to make a timely report of any such injury sustained while on

duty.

Turning now to the discipline sought to be imposed, it is well established arbitration precedent that the penalty sought to be imposed by an Employer will not be disturbed so long as it is not arbitrary, capricious or discriminatory. In the instant matter, while the Claimant's actions warrant some form


of disciplinary action, the Board finds that the penalty of a 30-day actual suspension is too harsh. In
 _1,:._. *1,:.. ,.,..,.:,... VrH,_ _a t_y.t__ ..__.:_
 a.,wuuy uat~ COimunavtt, a rC'vicw Vi tttc l.ajeJ liltGU Uy L11G 1,.A.111Gr (eVCal that a harsh penalty 1S
 reserved for those cases where the Claimants waited one-year from the event to file an Injury
 Report, and that he had "virtually disappeared from sight for approximately seven months", (PLB

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1838, Awd. 70, BMWE vs. NSW (Van Wart, 1984), for the falsification of a personal injury, (3 NRAB Awd. 25133, BMWE vs. CRC (Vaughn, 1984) n-r where the Board f , nd t * .be ` a:
 - o.: ha. III ~ N ,nirildnt could have, but failed to report an injury within 5 days of its occurrence, but instead waited 18 days to report his injury (3 NRAB, Awd. 19298, BMWE vs. ATSF (Killum 1972). While the Claimant's allure to abide by Rule id is a serious event, his actions did not arise to egregious conduct such as that demonstrated by these cases.

 CONCLUSION
While the Investigation revealed that the Claimant engaed ,n an action that warrant.-d';-;_1:-
                                I scY...ary

action, the Board finds and concludes that under the facts of this case, a 15-day actual suspension
 represents a more appropriate penalty. However, let this decision serve as formal notice to the
 Claimm,"hatifliehasany tHopes of continuing his employment with this Carrier, he is duty bound
 to follow all Rules, Regulations and Procedures promulgated by the Carrier for the efficient and safe
 operation of its business as well as the general welfare of all its employees. In this regard, Rule N
 requires a prompt reporting of all injuries, whether real or suspected as a means of providing the
 Carrier with notice of a potential safety threat as well as a means of providing treatment to a valued
 employee as soon as possible.

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                    e is , pagna

                    Ch i an a Neutr Member


D. C-tholomay D.L. Kerby
 Orgamzatton Member Garner Member

                        July 24, 2006

                        Dated


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