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YARBROUGH v. NORFOLK & W. RY. CO.

May 24, 1977

Kenneth J. YARBROUGH
v.
NORFOLK AND WESTERN RAILWAY COMPANY



The opinion of the court was delivered by: ROSENBERG

 ROSENBERG, District Judge.

 This matter is now before me on the motion of the respondent, Norfolk and Western Railway Company, to dismiss the petition of the petitioner, Kenneth J. Yarbrough, for a review of an award of Public Law Board No. 1428. The petitioner alleges jurisdiction is based on the Railway Labor Act, 45 U.S.C. § 153.

 On September 15, 1973 or September 16, the petitioner, then employed by the respondent as a brakeman, sustained an injury to his leg by bumping it against a water cooler while riding in the caboose of the respondent's train upon which he was working. The apparent reason for the incident was a jerk in train movement caused by slack action. Although he mentioned to the conductor aboard that he bumped his leg, he made no injury report at that time because after a cursory examination he saw no damage and felt no pain.

 Subsequently, the petitioner filed a personal injury report with the respondent on September 18, only after the pain he was suffering became great enough for him to see a doctor.

 As a result of this report, the respondent charged the petitioner with violations of its Safety Rule 1001 and Operating Rule 423.

 
Safety Rule 1001: Employees must report all personal injuries, regardless of how slight, to the proper supervisory officer before leaving the company's premises. Even slight injuries should receive immediate attention to prevent infection.
 
Operating Rule 423: Every case of personal injury, accident or damage to property must be reported as soon as practicable by the quickest available means of communication and a written report upon the prescribed form rendered promptly. Such reports must contain full details and names and addresses of all witnesses and all particulars of the occurrence.

 On October 2nd, a trial was conducted by the respondent on the violations above and the petitioner was found guilty of both charges and subsequently dismissed. He then, along with his union, the United Transportation Union made a timely appeal of that decision to the National Railroad Adjustment Board, Public Law Board No. 1428, 45 U.S.C. § 153.

 On March 24, 1975, Public Law Board No. 1428 consisting of three members, entered its findings with one member dissenting. The Board held,

 
". . . we are persuaded that all the surrounding events at the time and the consequences which immediately followed strongly indicate that immediate reporting was called for within the requirements of Safety Rule 1001 ('Employees must report all personal injuries regardless of how slight . . .').
 
When claimant's entire record is taken into account as well as degree of knowledgeable default involved here, we believe that Carrier acted within its right in imposing discharge penalty.
 
Award:
 
Claimed ...

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