(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:.

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The discipline assessed to Machine Operator Thyril L. Johnson was arbitrary, capricious and without just cause (System File D-41-77/MW-4-78).

 (2) Machine Operator Johnson be reinstated back to service with seniority and all other rights unimpaired and he be compensated for all wage loss in accordance with Rule 28 of the Agreement."

 OPINION OF BOARD: Claimant, with about four and one-half years of service
 with the Carrier, was employed as work equipment operator. On October 28, 1977, he was assigned as such on a piece of equipment described in the record as a Bantam D-34 Crane. He stood on top of the crane's counterbalance - which is at the rear end of the cab and about five feet a ground - while he cleaned the crane's engine. At about 11:30 A.M. he finished the cleaning and jumped off the counter-balance to the ground, injuring his leg when he hit the ground.

 Claimant was immediately aware of the injury and could have advised his superior but reported the injury on October 29, 1977. He was notified to attend investigation on November 8, 1977 at 9:30 A.M. at Grand Junction:

A copy of the transcript of the investigation has been made a part of the record. On November 18, 1977, claimant was dismissed from service:



                              Docket Number Mv1-22840


                  'Employees who are careless of the safety of themselves or others, or guilty of acts of disloyalty, dishonesty, desertion, intemperance, immorality, insubordination, incompetency, willful neglect of duty, inexcusable violation of the rules, making false reports or statements or concealing facts concerning matter investigation will be subject to dismissal.' ...."


j
        It is well settled in discipline cases that the parties to the dispute and the Board itself are restricted to what is developed in the investigation, and neither party is free to supplement that record subsequent to the investigation.


        In the investigation evidence was presented that there were ladders and walkways for use in getting on and alighting from the crane, and that it was not a safe practice to jump from the counter-balance.


        Based on our review of the record properly before us, the Board concludes that discipline was warranted, but that permanent dismissal was excessive. We will award that claimant be restored to service with seniority and other rights unimpaired, but without any compensation for time lost while out of service.


        FINDINGS: The Third Division of the Adjustment Board, upon the whole record

                and all the evidence, finds and holds:


                That the parties waived oral hearing;


        That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;


          That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and


                That the discipline imposed was excessive. _, , .- ·.


                              A W A R D C<


                Claim sustained to the extent indicated in Opinion and Findings.


                                    NATIONAL RAILROAD ADJUSTMENT BOARD

                                    By Order of Third Division


        ATTEST:

                xecutive Secretary


          Dated at Chicago, Illinois, this 18th day of April 1980.