there is no challenge by the Carrier that on August 31, 1993 the Claimant completed a Report of Personal Injury concerning "sore neck and shoulders."

In that report, the Claimant stated that, at the time of Locomotive 5548 being hit, he was "in the electrical locker behind the cab" performing work as quoted in the charge against him. The sole concern of the Carrier, and the reason for the dismissal action, was the Carrier's contention that the Claimant was not in the electrical locker compartment, but further forward in the cab of Locomotive 5548. While not directly so stated, the Board concludes that the Carrier is alleging one of the following: (1) if the Claimant had been in the cab, an injury would not have resulted; (2) there was no injury; or (3) if the Claimant was injured, it did not occur as a result of Locomotive 7827 hitting Locomotive 5548.

By challenging the account in the Report of Personal Injury and the Claimant's corroborating written statement, the Carrier assumes an affirmative defense. As a result, it is not the Claimant's burden to prove he was not in the cab; rather, it is the Carrier's burden to prove that he was not in the electrical locker. The Board finds the Carrier failed to provide reasonable proof in support of its contention.

To attempt to prove that the Claimant was in the cab and not in the electrical locker, the Carrier relied on the testimony of two employees. The first was the Sheet Metal Worker operating Locomotive 7827. He testified that, as his engine approached, he applied emergency brakes, blew his horn, and saw a "man in the cab of the unit spotted Spot #7." The Sheet Metal Worker further testified that, after the incident, the Claimant came out of the Fireman's door of the locomotive cab and talked with him. The Carrier also alleges that a Carman on the scene "noticed [the Claimant[ in the cab of Locomotive 5548."

A closer examination of the testimony shows these observations were not as dear cut as argued by the Carrier. The Sheet Metal Worker's testimony included the following:

"Q Where was the, where was [the Claimant] located when you first saw him?

A When I seen him, he was in the cab.

cab ',lust before we coupled. That's the reason I blew the horn at him but

I couldn't tell you who it was.

Q Do you believe [the Claimant[ had the time to get out of the electrical locker into the cab?

A He could have. Like I say it was dark and I couldn't tell you." (Emphasis added)

"Q Would you please state what you saw.

A . . . I stood there and watched it and I looked up and I saw [the Sheet Metal Worker) on the engine on spot seven and I saw [the Claimant[ in the cab in the engine on spot seven .... I tried to look to see if there was anybody between the engines because I didn't want to see nobody get killed you know but I didn't see anybody and when the engines hit, I saw [the Claimant) reach round and knock the throttle off because he had the engine revved up and he was standing there facing that little cabinet where you start the engine up and he knocked the throttle off and he went out the fireman's door ... ."

"Q When was the first time you seen [the Claimant[ after [the engines] coupled up?

A Approximately, I'd say, maybe three, four seconds after we coupled up, . . . I ran up to the locomotive to uncouple it and on my way going up to uncouple it, 1 seen [the Claimant standine on the runnine board outside the electrical door looking at, looking towards me."

It was the Claimant's testimony that he moved from the electrical closet to the cab to "knock oft" the throttle, apparently a proper safety measure. A review of the testimony of the three witnesses as related above can by no reasonable means serve to prove that the Claimant was not, at the moment of impact, doing what he said he was doing in the electrical locker.

Beyond this, it is difficult to understand the Carrier's belief that the Claimant's position on the locomotive was so fundamentally important that it warranted dismissal. Nowhere in the record before the Board does the Carrier challenge the Claimant's statement that the impact caused the injury. Further, the Carrier's Submission provides a deposition given by the Plant Manager on March 29, 1994 which includes the following:

"Q I'm trying to understand the basis of - first I want to understand the reason that you have held an investigation and disciplined [the Claimant[.

I thought that you said there was some dispute as to whether he was injured.

A [by Plant Manager[ No, sir."

The same document indicates that the Claimant was assessed no discipline in the 20 years prior to the incident here under review.

On the narrow issue stated in the charge, the record is clearly unconvincing that the Claimant falsely stated he was in the electrical locker at the time of the impact. Because there are no other charges against the Claimant, the claim must be sustained. However, the claim is sustained in accordance with Rule 32, providing for reinstatement with seniority rights unimpaired and compensation limited to "wage[s[ lost, if any."

98-2-95-2-40