By correspondence dated December 5, 2001 the Claimant was notified to attend a formal Investigation on December 11, 2001. The purpose of the Investigation was to, ". . . determine your responsibility, if any, for your alleged violation of NORAC Rules R, S, effective January 17, 2000, and Rules 1.1, 1.5A, 1.11 (p. 1), 4.1 and 4.4 (p. 5) from the D & H Employee Safety Code and Policy (DHC-1000), effective July 1992, while you were employed as a Carman on November 27, 2001 at approximately 1300 Hours at Saratoga, New York which resulted in an alleged personal injury and failure to promptly report."
The formal Investigation was convened and held as scheduled. As a result of this Investigation the Claimant was notified by Certified Mail that his record had ". . . been assessed with a Formal Caution for violation of Rule(s): Failure to comply with NORAC Rule S, effective January 17, 2000, and Rules 1.1, 1.5a, 1.11 (p. 1), 4.1, and 4.4 (p. 5) from the D & H Employee Safety Code and Policy (DHC1000), effective July 1992, while you were employed as a Carman on November 27, 2001 at approximately 1300 Hours at Saratoga, New York which resulted in a personal injury." The claim was initiated and properly handled on the property and is now before the Board for adjudication.
The record reflects that on November 27, 2001 the Claimant was injured while attempting to shim a coupler with a 12-pound sledgehammer. The Claimant was injured when the sledgehammer bounced off the shim and struck the Claimant on his left side. Medical examination subsequently revealed only bruised ribs or possibly a fracture not revealed by x-rays. The Claimant was given two prescriptions and was allowed to return to work without any time lost.
The Carrier argues that the Claimant is obviously in violation of the aforementioned Safety Rules when he chose an improper course of action to shim a coupler. The record however reflects that the option chosen by the Claimant is an accepted one. The Claimant chose an option that he and other Carmen had used in the past and was a method known and accepted by the Carrier. It is also noted that the shim was eventually installed using the same technique as attempted by the Claimant. Form 1 Award No. 13789
The Carrier has not substantiated that the Claimant violated the Rules for which he was disciplined. The claim must be sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.