BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 986
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
NATIONAL RAILROAD PASSENGER CORPORATION
(AMTRAK) - NORTHEAST CORRIDOR
Case No. 237
STATEMENT OF CLAIM:
Appeal of the discipline, a ten-day suspension, issued to Claimant G. Mays (System
File NEC-BMWE-SD-4373D).
FINDINGS:
At the time of the events leading up to this claim, the Claimant was employed by
the Carrier as a Track Foreman, headquartered at Penn Station in New York, New York.
By letter dated August 4, 2003, the Claimant was notified to appear for a formal
investigation and hearing on charges that the Claimant violated the Carrier's Standards of
Excellence and Maintenance of Way Safety Rules when the Claimant allegedly failed to
immediately report an injury that he allegedly sustained while on duty. After a
postponement, the investigation was started on August 21, 2003, recessed and
reconvened on September 19, 2003, and recessed and reconvened on November 26, 2003,
on which date the investigation was concluded. By letter dated December 11, 2003, the
Claimant was notified that as a result of the investigation, he had been found guilty of the
charges, and he was being assessed a ten-day suspension. The Organization filed a claim
on the Claimant's behalf, challenging the Carrier's decision to discipline him. The
Carrier denied the claim.
1
SeA ND.
GB(- cz.je
,~. 23~
The Carrier initially contends that the evidence in the record clearly establishes
that the Claimant did not immediately report his alleged injury to his supervisor, as
required by the Standards of Excellence on Safety and General Rule 4000. In fact, the
record shows that the Claimant did not report his injury until twenty-seven days after it
allegedly occurred. The Carrier maintains that the Claimant's testimony establishes his
guilt. The Claimant admitted that he felt pain on June 20, 2003, but that he did not report
it until "a couple of weeks later." The Carrier insists that there is no doubt that the
Claimant knew something was wrong on June 20`", that he did not tell anyone that he was
hurt during work, and that he first reported the injury weeks after it occurred.
The Carrier asserts that testimony and evidence adduced at the fair and impartial
investigation clearly establish that the Claimant is guilty as charged. The Claimant
admittedly was aware that he sustained an injury on June 20`h, and he did not immediately
report the injury to his supervisor, as required. The Claimant's testimony also makes it
clear that he did not report his alleged injury at any time on the date that it occurred. The
Carrier maintains that failure to report an injury is a serious violation; continued work
could aggravate the injury, place the employee and his co-workers in jeopardy, and
prevent the Carrier from conducting a proper review of the circumstances.
The Carrier argues that there can be no exception to or relaxation of safety rules.
Safety is a primary consideration in the railroad industry, and it is to the employees'
benefit to report all evidence of injury, even if an employee does not realize that an actual
injury has occurred. Addressing the Organization's contention that the Claimant did not
know he had a hernia until he went to see a specialist, and that he thereafter immediately
2
SBl+
Nz). w8b C," No.237
reported the injury to his supervisor, the Carrier maintains that these allegations are
merely a self-serving attempt to mitigate the Claimant's guilt. The Carrier emphasizes
that the Claimant definitively identified June 20 as the date on which he was injured, and
he clearly acknowledged that he was aware of sustaining the injury on this date because
he "felt it." The Carrier insists that it is irrelevant that the Claimant may not have known
what type of injury he had sustained because the record clearly shows that on June 20, the
Claimant was aware that he had sustained an injury and failed to immediately report that
injury to his supervisor.
As for the Organization's assertion that the Claimant had told his supervisor that
he had a pain in his stomach, the Carrier emphasizes that the evidence establishes that the
Claimant did not advise his supervisor that his stomach was hurting on June 20, 2003, or
that his stomach hurt as a result of an injury sustained on June 20, 2003. Supervisor
Lawrence's testimony establishes that the Claimant reported that his stomach was
bothering him well after the date that the Claimant allegedly was injured. The Carrier
insists that there is no evidence that the Claimant informed his supervisor on June 20,
2003, that his stomach was hurting or that he had been injured.
The Carrier then disputes the Organization's allegation that the assessed discipline
was harsh because the Claimant never was counseled on the timely reporting of injuries.
The Carrier emphasizes that it has the right and the responsibility to establish and enforce
rules for the safe conduct of its operations. Moreover, the Carrier's employees are
required to have a thorough knowledge of and to obey such rules. The Carrier argues that
it is necessary to make it clear, through disciplinary action, that the safety of the
3
S 8 fl--'a . 9
C
~.te No , 2 3 7
Claimant, his fellow employees, and the public should be of the utmost concern. The
Carrier maintains that violations of its Safety Rules are serious infractions that warrant
the assessment of discipline. The Carrier asserts that a ten-day suspension cannot be
viewed as excessive, given the Claimant's failure to follow the Standards of Excellence
and the Safety Rules. The Claimant was guilty as charged, and the ten-day suspension
was warranted.
The Carrier ultimately contends that the instant claim should be denied in its
entirety.
The Organization initially contends that the evidence demonstrates that the
Claimant was not aware that he had a hernia until he went to see a specialist in July 2003.
The Claimant thereafter immediately reported this injury to his supervisor. The
Organization emphasizes the testimony of the Claimant's doctors that a person may have
a hernia but not be aware of it. Moreover, the Claimant did inform his supervisor that he
had a pain in his stomach.
The Organization additionally argues that the discipline imposed on the Claimant
was excessive. The Organization asserts that Supervisors Santini and Lawrence admitted
that the Claimant had not been counseled on the timely reporting of injuries.
The Organization ultimately contends that the instant claim should be sustained in
its entirety.
The parties being unable to resolve their dispute, this matter came before this
Board.
This Board has reviewed the evidence and testimony in this case, and we find that
4
' S.BR two.
qg~_ cfu gD·Z.37
there is sufficient evidence in the record to support the finding that the Claimant failed to
promptly report the injury that he incurred on duty. The Claimant did not report the
injury until July 17, 2003, twenty-seven days after he was injured on June 20, 2003. The
record reveals that the Claimant felt pain and it was later determined that he had suffered
a hernia. It is clear that when the Grievant felt that pain in his stomach that he should
have reported that immediately to one of his supervisors in order to be in compliance
with the rules.
Once this Board has determined that there is sufficient evidence in the record to
support the guilty finding, we next turn our attention to the type of discipline imposed.
This Board will not set aside a Carrier's imposition of discipline unless we find its
actions to have been unreasonable, arbitrary, or capricious.
The Claimant in this case was only issued a ten-day suspension. Failure to
promptly report an injury often leads to a dismissal or much greater discipline. This
Board cannot find that the Carrier's issuance of a ten-day suspension to this Claimant for
the violation was unreasonable, arbitrary, or capricious. Therefore, the claim must be
denied.
5
` S
B-A ~D . `~b G~s-~ No.237
AWARD:
The claim is denied.
PETS E '61R. EYERS
Ne tral ember
T,Q-j
~v
co
7
lell-
ORGANIZATION MEMBER CARRIER MEMBER
DATED:
r~-(o
IO S
DATED:
7 JQI~C
6