PARTIES Brotherhood of Maintenance of Way Employes
 TO and
 DISPUTE Southern Pacific Transportation Company (Western
 Lines)
 STATEMENT 1. That the Carrier violated the provisions of
 OF CLAIM the Agreement when, following a formal hearing
 which took place on March 1, 1983, the Company
 suspended Mr. Richard Leon Stark, Crane
 Helper, for a period of thirty (30) calendar
 days, effective March 10, 1983 through April
 10, 1983, for allegedly violating that portion
 of Rule 801 dealing with dishonesty, said
 action being without basis.
 2. That Richard Leon Stark be compensated for all
 time lost as a result of his suspension and
 that his record be expunged of any reference
 to the incident.
 FINDINGS
    Upon reviewing the record, as submitted, I find that the Parties

    herein are Carrier and Employes with the meaning of the Railway

    Labor Act, as amended, and that this Special Board of Adjustment

    is duly constituted and has jurisdiction of the Parties and the

    subject matter, with this arbitrator being sole signatory.


    On January 30, 1983, Mr. David Raymond Voris, District Maintenance of Way Manager, who is headquartered in Eureka, California, was contacted by Richard Stark by telephone. Mr. Stark explained he had suffered a personal injury. At that time, Mr. Voris asked him where and when the accident occ»rrea.

SBA No. 947 Award No. 5 Case No. 5 Mr. Stark could not describe the location of the accident nor when it took place. He did say he-wanted to fill out an Accident Report. The Grievant filled out an Employe's Report of Accident, form 2611, listing the date of accident as January 29, 1983, and where the form asked how the accident happened he wrote that his doctor's opinion was "the knee had had too much strain". After discussing the Report Form with Mr. Olenik, Chief Clerk to Division Engineer at Willits, and being told that without a specific date and time of accident, there would be no on-the-job injury, the Grievant filled out a second Report Form listing the date of the accident as January 26, 1983. This time the cause of the accident was listed as "The knee started hurting and got worse each day". In the interim, Mr. Stark had been receiving medical attention, including therapy for his right knee. In one doctor's report, the pain in his knee was attributed to heavy labor associated with climbing and pulling heavy loads. The report stated his knee had bothered him for one and one-half (1 1/2) weeks. A second doctor's report stated the injury happened when the Grievant jumped from a crane and had been bothering him for two weeks. After reviewing all the submissions pertaining to Mr. Stark's injury, the Company, sent a letter to Mr. Stark, which said in part:

    You are hereby directed to be present . . . .for a formal hearing in conjunction with your filing of an alleged deceptive personal right knee injury report on January 31, 1983, which you claim occurred on January 29, 1983 and the filing of a second alleged deceptive report for the same injury on February 4, 1983, which you claim occurred on January 26, 1983. In connection with the foregoing alleged

                                    SBA No. 947

                                    Award No. 5

                                    Case No. 5


    occurrence, you are hereby charged with responsibility, which may involve violation of that portion of Rule 801 of the General Rules and Regulations of the Norrthwestern Pacific Railroad Company, reading:


                  Rule 8010 "Employes will not be retained in the service who are . . . . dishonest . . . .


The Grievant was held in service until after the formal hearing, but afterwards was suspended for a period of thirty (30) calendar days.

 The Grievant was employed by the Company for six and one-half years as a laborer, including one year during which he was furloughed. Other than several incidents of personal injury, mostly minor, he has had a_very good employment record. There has been no warnings or other disciplinary actions taken against the Grievant for any reason. In this case there was nothing which would indicate the Grievant was attempting to lie about his injury. He stated from the start he did not know when the injury could have occurred, but it became progressively worse. It is not unusual for injuries to occur almost unnoticed with pain starting later on. If Mr. Stark intended to lie about his injury, he surely would have been better prepared when he first contacted Mr. Voris. Perhaps the Grievant was slightly careless and not very observant, but there is no evidence to support the Company's contention that Mr. Stark was being dishonest. This is further emphasized by the fact, the two doctor's reports submitted by Mr. Stark lists slightly different causes for his

                          3

                                    ' SBA No. 947

                                    Award No. 5

                                    Case No. 5


    knee injury. If he had cited a specific cause of injury to the doctor's they would have used the same reason on both forms, they did not. AWARD


          The claim is granted; Mr. Stark is to be compensated for all time lost as a result of his suspension for the above described incident.


        ORDER The Company is to comply with this order within thirty (30) days of its issue.


                                              O


                                        t: !C -> >~ ~.e t.Carol J./,ampE~lini, utral


Denver, Colorado June 21, 1984

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