AWARD N0. 212
CASE NO. 299
SPECIAL BOARD OF ADJUSTMENT NO. 280
PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
TO )
DISPUTE ) ST. LOUIS SOUTHWESTERN RAILWAY COMPANY
STATEMENT OF CLAIM:
"l. Carrier violated the effective Agreement
when Machine Operator J. P. Rogers was unjustly dismissed by letter dated November 21,
1984, and did not receive a fair and impartial
hearing.
2. Claimant Rogers shall now be paid for all
time lost commencing November 21, 1984 and
continuing until such time as he is restored
to duty, and with vacation, seniority and all
other rights restored intact and unimpaired.11
(MW-85-21-CB-Rogerst 53-811)
FINDINGS:
The Board, after hearing upon the whole record and all the
evidence, finds that the parties herein are Carrier and Employee
within the meaning of the Railway Labor Act, as amended: this
Board has jurisdiction over the dispute involved herein: and, the
parties were given due notice of hearing thereon.
Claimant was advised by Carrier letter dated November 21, 1984
that
he was
removed from service pending formal investigation for
violation of Rule M801 of Carriers Rules and Regulations for the
Maintenance of Way Department as related to his allegedly being
"accident prone" as evidenced by what Carrier states was 19 personal injuries between August 16, 1971 and November 8, 1984.
Rule M801 reads in part as follows:
"Employes will not be retained in the service who are
careless of the safety of themselves . . . ."
Following the company hearing, which was held on February 13,
1985, after having been postponed several times by mutual agreement of the parties, Claimant was advised he was dismissed from
all service of the Carrier.
It is the position of the Carrier that the transcript of hearing
clearly proves that Claimant was in violation of Rule M801.
In support of its position, Carrier directs particular attention
to testimony of its Safety officer at the company hearing to the
effect that Claimant had had more personal injuries than any
other individual employee in the Maintenance of Way Department.
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A 2gQ AWARD NO. 212
CASE NO. 299
In this connection, the Carrier points to those statements of its
Safety officer whereby it was statistically shown that during the
period of 1979 through 1984, Maintenance of Way employees on its
property averaged 1.8 injuries per employee, with its machine
operators, of which Claimant was one, having averaged only 1.1
injuries per employee, whereas Claimant, during this same period
of time, had sustained eight injuries notwithstanding Claimant's
work environment had reportedly not differed from that of other
machine operators.
The Carrier also directs attention to the fact that Claimant had
been cautioned in conference and by follow-up letter in September
1976 about the number of on duty injuries (9) which he had experienced since 1971. The closing paragraphs of the letter to
Claimant read as follows:
"Your attention was directed particularly to the number
of back injuries experienced by you when lifting. The
importance of correct position when lifting and the
proper lifting techniques was discussed with you and we
earnestly request your cooperation in working safely and
preventing future injuries. This is for your benefit as
well as your family.
I was encouraged by your attitude toward assisting in
this very important matter."
The Carrier thus maintains that in view of claimant's high
propensity for personal injury, it properly determined that he
should not be retained in service as it believes him to be a
hazard to himself and his fellow employees.
It is the organization position that review of the statistical
data presented by the Safety officer leaves much to be desired.
It says the Safety Officer made judgments without regard to
whether or not those individual employees used as a statistical
base had in fact worked the same type machinery under the same
type work conditions and, further, that the Safety officer did
not determine nor present in evidence the details involved with
any of Claimant's past injuries. In this latter regard, the Organization submits that the Safety officer did not offer any testimony whatsoever relative to the seriousness of the reported
injuries, whether an accident was later determined not to have
been an accident, or, the extent to which any injuries resulted
from being required to operate defective equipment and to otherwise work under unsafe conditions.
The organization also submits that whereas Claimant was charged
with having had 19 personal injuries, the statistical printout
listed but 18 reported injuries in the period of approximately 14
years. Further, that three of the reported injuries had concerned insect bites. In this regard, the Organization says:
"That would leave 15 injuries that would be an average of ap-
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AWARD
N0. 212
SBA 280 CASE
NO. 299
proximately 1 injury per year, which would not be unusual for injuries sustained by [an] employee performing the laborious work
required of employees in the Maintenance of Way Department."
As concerns the question of whether there were 18 or
19
injuries,
the Board would note that at the company hearing Carrier's Safety
officer made the following response to a question by Claimant's
representative for an explanation of the discrepancy:
"The statistics which show 18 injuries is based on a
computer search which is further based on submission of
accident reports to San Francisco. The charge letter
shows 19 and is based on a search of the personal
record. The discrepancy occurred in 1982 in which an
injury was claimed which later became known to be an infection and not injury related, and therefore, was not
submitted to San Francisco."
There is no doubt from review of the record as developed at the
company hearing that Carrier relied solely upon a statistical
analysis of reportable injuries and the perceived severity of the
reported injury as related to the part of the body alleged to
have been injured. The Carrier did not attempt to provide any
review or throw any light whatsoever upon such questions as
whether the involved or reported injuries were related to acts of
carelessness by the Claimant or the extent to which, if any, the
injuries were the result of Claimant not having been provided
reasonably safe work conditions on the job.
Review of the transcript of hearing also shows that Carrier's
principal witness, its Safety officer, was not prepared to offer
comparisons between Claimant's record and records of other
employees as to the number of work days lost as a result of
accidents, albeit the Safety Officer did state in response to a
question by Claimant's representative that 12 of the 19 injuries
had not involved the loss of work days by Claimant.
There is no question that Claimant has an inordinate large number
of personal injuries on his record, far exceeding the average for
his fellow employees. However, and notwithstanding the fact that
a fairly regular and repeated pattern of work injuries calls for
a review of the circumstances surrounding such injuries and imposition of appropriate disciplinary sanctions, we do not believe
there was sufficient evidence adduced at the company hearing to
adjudge Claimant as "accident prone" and so negligent in the disregard of safety rules as to call for his permanent dismissal
from service.
At the same time, the high number of injuries experienced by
Claimant in comparison with other employees suggests Claimant
does indeed have a poor safety record. This notwithstanding a
belief that certain aspects of the record suggest Claimant is
being over cautious of Carrier's rule which require employees to
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AWARD NO. 212
CASE NO. 299
report all personal injuries, regardless of how slight, such as
in reporting an insect or bee bite, which are not always in
reality injuries.
In the circumstances of record, and in the light of Claimant's
poor safety record, the Board believes that discipline short of
discharge would be an appropriate measure of discipline so as to
caution Claimant that continued personal injury of himself as a
result of his own negligence could result in permanent dismissal
from service.
Therefore, it will be the Board's finding that Claimant be
reinstated to service with seniority and other benefits
unimpaired, but without payment for time lost. The Claimant is
admonished, however, to bear in mind the seriousness of safety
rules and the importance of his working in a safe manner so as to
avoid injury to himself by taking the safe course with respect to
the performance of his work and of the need for him to bring to
the attention of the Carrier any defective equipment or unsafe
working conditions as necessary to any
continuing employment
relationship with the Carrier.
AWARD Claim sustained to the extent set forth in the above Findings.
4PG~
Robert E. Peterson, Chairman
and Neutral Member
R. O. for M. A. Christie
Carrier ember
organization member
Houston, TX
August 29, 1986
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