Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
 SECOND DIVISION
 Award No. 13923
 Docket No. 13812
 07-2-06-2-22

 The Second Division consisted of the regular members and in addition Referee William R Miller when award was rendered.

 onal Brotherhood of 'cal Workers
 PARTIES TO DISPUTE : (

STATEMENT OF CLAIM :


Form 1 Award No. 13923
 Page 2 Docket No. 13812

The Second Division of the Adjustment Board, upon the whole record and all the evidence, rinds that:


The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employer within the- meaning of the ay Labor Act, as approved June 21,1934.


This Division of the Adjustment Board has jurisdiction over the dispute involved herein.




tan August 31, 5, Carrier notified Claimant to appear for a formal
 Investigation on September 13, 2005, to develop all the facts as to whether or not he
 had failed to work in a safe manner or plan his work to avoid injury resulting in an
 alleged ' strained ° t shoulder about 6:00 Ad~L, on August 13, 2005 while
 attempting to operate switch loo. 401 on 71 track South runaround at the Diesel
 Shop.

On September 29, , Claimant was notified that he had been found guilty as charged and was dismissed.


It is the position of the Organization that Claimant was deprived of a fair and impartial Investigation because the Hearing Officer displayed negative prejudgment and the charges were not precise. Additionally, it argues that the Carrier erred in its dismissal because it did not prove that Claimant worked in an unsafe manner.


Carrier argues there is n0 substance to the Organization's argument that Claimant was denied a fair and impartial blearing. The Carrier also raises an argument stating that the claim before the Board has been changed from that presented on the property. It states the Organization never requested reinstatement on the property, thus that request before the Board significantly changes the claim, therefore, it is procedurally defective and should be dismissed. Last, it argues that the transcript indicates that Claimant did not plan or do his work in a safe manner and because he is a relatively short term employee dismissal was appropriate.

Form 1 Award No. 13323
 Page 3 Docket No. 13812

The Board has reviewed the transcript and record of evidence and finds no
 merit to the Organization's procedural argument that the Hearing Officer denied
 the Claimant the opportunity to a fair Hearing. At the close of the Hearing the
 Organization was asked whether the Hearing had been fair and impartial and it
 responded in the affirmative with the caveat that the charges were not precise.
 Regarding the alleged lack of specific charges we find no merit because it is clear
 that Claimant and the Organization understood the charges as the Claimant was
 ably and vigorously represented by the Organization at the Hearing. We next turn
 to the Carrier's procedural argument that the claim should be dismissed because it
 has been altered at the Board. That argument is rejected on the basis that the
 Organization asked that the t "be made whole" on the property and to
 "make whole" would include reins ent, therefore, the specific request for
 reinstatement before the Board is not a new or novel request that the Carrier should
 not have expected. There has been no showing that the Carrier has been or was
 misled as to what the Organization was trying to secure in behalf of the Claimant.

The &spate wdl be resolved on its merits. The facts indicate that on August 13, 2005 about 6:00 A.M., Claimant and Laborer Levingston were moving a consist of locomotives from the south side of the shop to another location in the Shreveport Locomotive Facility, Levingston was operating the controlling locomotive and Claimant was working as the ground man during the move. While aligning switch #401 on track 71, Claimant was in the motion of throwing the switch from the top position downward when he encountered resistance about a third of the way down. At that point in accordance with Carrier instructions he finished throwing the switch with his foot and leg. Approximately, 30 minutes later Claimant advised Foreman Mitchell that switch No. 401 was difficult to throw and that his right shoulder was sore as a result. During the Hearing, Claimant testified that he did not realize he `vas hurt as badly as he was, therefore, he did not fill out a personal injury report nor was he asked to. Subsequently, he began to experience increased pain and he went to his doctor who diagnosed the injury as a torn rotator cuff.


Testimony verifies that the Carrier had prior notification that switch No. 401 was hard to throw and that Claimant did not have the benefit of that knowledge. It further indicates there been no showing that the Claimant had the locomotive stopped in too close of a proximity to the switch, thereby rendering it more difficult to move.

Form 1 Award No. 13923
 Page 4 Docket No. 13812
                                              07-2-06-2-22


The Board finds and holds that the discipline must be rescinded as the Carrier did not meet its burden of proof and Claimant should be reinstated with seniority intact and all other rights unimpaired, but without backpay. We are not awarding any monies in this instance because Claimant claimed an injury to his shoulder that prevented him from working his regular assignment and since that injury he has not provided anything to show that he was medically able to perform service: We have denied Claimant's request fog- ' tatenet in Award 13924. That subsequent case nullifies reinstatement."


    Claim sustained in accordance with the Findings.


                        ORDER


      This after ' consideration of the a 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 pos k date the Award is
 transmitted to the 'm

                      NATIONAL ROAD ADJUSTMENT BO

                      By Order of Second Division


Dated at Chicago, Illinois, this 6th day of August 2007.