7
SPECIAL BOARD OF ADJUSTMENT N0. 279
Award No. 513
Docket No. 513
File 900705
Parties Brotherhood of Maintenance of Way Employes
to and
Dispute Union Pacific Railroad Company
(Former Missouri Pacific)
Statement
of Claim: (1) Carrier violated the Agreement, especially Rule 12,
when Welder Helper D. J. Barnes was dismissed on August 2,
1990.
(2) Claim on behalf of Mr. Barnes for wage loss suffered,
beginning June 29, 1990, until reinstated with seniority,
vacation and all other rights unimpaired.
Findings: The Board has jurisdiction of this case by reason of the
parties Agreement establishing this Board therefor.
The Claimant, Donald J. Barnes, was notified under date
of July 3, 1990 to attend a formal investigation on the
charges:
"(1) Falsified injuries or the extent of injuries, reported
by you to have occurred on or about October 19, 1989, while
working as a Welder Helper on the Van Buren Service Unit
near Ft. Gibson, OK.
(2) Falsified the reasons for your absence(s) from duty
during the period October 20, 1989 to present and received
salary continuation payments under false pretenses during
the same period.
(3) Withheld information from and/or furnish medical
practitioners and company representatives fraudulent, false,
misleading and/or exaggerated information regarding your
physical condition; physical limitation, physical activities
and your ability to perform various physical activities
during the period since your alleged injury of October 19,
1989."
The Carrier concluded therefrom that Claimant was
culpable of the charges. He was dismissed under date of
August 30, 1990, as discipline therefor.
fr
-2- Award No. 513
The Board finds that Claimant was accorded the due
process to which entitled under Rule 12.
There was sufficient, competent, and probative evidence
adduced to support the Carrier's conclusion as to the
culpability of Claimant. Claimant, in essence, asserted
that he could not do any repetitive bending and stooping,
and that he could, literally, do little else than walk as a
result of his October 19, 1990 injury.
MRI and CAT scan tests failed to reveal any supportive
basis therefor. The medical conclusions were so
inconsistent with the Claimant's assertions as to provide
cause for his being placed under video surveillance for a 5day period. The tapes thereof reflected Claimant's physical
activities to be totally inconsistent with his assertions to
three of his doctors. In fact, a review of the tapes caused
one doctor, Dr. Fullonwider, after questioning the Claimant,
to believe that he, the doctor, was being mislead and the
doctor stated:
"I then did discuss with him that I had been shown video
tapes of his activities around the house installing glass
doors with repetitive bending and stooping, use of heavy
tools, etc., along with rototilling and other
act iv ities-I did point out that on these tapes I saw no
evidence of him having any difficulty with these movements,
no evidence of grabbing his back, etc. and told him at that
point, based upon his normal exam and his ability to carry
out these activities, that he could be released to return to
full duty. I have also explained to him that in my opinion
he has violated any physician/patient relationship and I do
not feel that I can have good faith or trust in this
gentlemen further, and thus I am releasing him from my
office."
The Board is impelled to conclude that if the injury or
injuries were at one point, as alleged by the Claimant, then
when observed and video taped, they were not as alleged by
Claimant to the Carrier or the doctors.
Consequently, the discipline imposed of dismissal is
not unreasonable. Such falsification was dishonest and
shredded the bond of implicit trust in the employee-employer
relationship. This claim will be denied.
Award: Claim denied.
Award No. 513
,P
-SY FK hlaammb6s; Jr., mpl ee Member R. 0. Rock, Carrier Member
thur T. Van Wart, Chairman
and Neutral Member
Issued March 24, 1992.