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.. _ Award Number- 24336
 THIRD DIVISION Docket Number MW-24522

                    (Brotherhood of Maintenance of Way Employes

      PARTIES TO DISPLM:

                    Consolidated Rail Corporation (formerly The New York,

                    New Haven and Hartford Railroad Company)


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


      (1) The discipline (reprimand) imposed upon Trackman J. W. Clark for alleged responsibility far the injury sustained by him on May 14, 1980 was arbitrary, capricious, unwarranted and on the basis of.unproven charges (System Docket No. NH-55).


      (2) The reprimand referred to in Part (1) above shall be expunged from the claimant's record."


    OPINION CF BOARD: Claimant J. W. Clark vas employed as a trackmna. No

    vas regularly assigned as such to vork in Stone's

    Yard under the supervision of Foras%n J. Travers.


      On May 14, 1980 the Claimant and Trackman Mike White were engaged in replacing two broken rails at Cedar Hill Yard. Subsequent events were related by the Claimant in the following quoted testimony:


            Tr.p.2:


            Conducting Officer Parola to Claimant Clark:


              "Q. Can you tell us the nature of your injury and how you received it, in po:a own words?


            A. On the morning of May 14th we had to go up to the East

      y. Hump, Cedar Hill Yard, and replace two rails because a

              derailment had occurred the day before. Just myself and

              Mike White was left to do the job. Sal Pilato, on the

              work train brought the two rails for us. They put the

              rails down and he left. That left me and Mike. We got

              one end of the rail tight up and I was getting ready to

              make gage, with the use of a lining bar I was trying to

              push the rail out to make gage. When I was doing that,

          ' Mike White was holding the other end out for me so it

              would not fall back. Ia the process of doing that I

              wrenched my back some way or another. I stopped then

              and I called Stone's Yard and I did not get any answer,

              nobody in the office, so I went back and proceeded to

              do what I could. Later on during the day John Travers

              came back and I informed him of what happened. That's

              the way it happened."

                      Award Number 24336 Page 2

                      Docket Number mw-24522 r.


Because the Claimant sustained ·a personal injury, he was instructed to appear for a hearing on August 8, 1980, "lo determine your responsibility, if any, for your personal injury which occurred on May 14, 1980, at approximately 11:45 A.M. at Cedar Hill Yard." and "To determine your responsibility, if any, for your alleged violation of Safety Rules 3000(a) and (b) and 3111."

 The hearing was held as scheduled, following which the Claimant received a notice reading:

        'LETTER NO. 1:


        "Office of the Division Engineer

        55 Frank B. Murray Street

        Springfield, Massachusetts 01103


        August 15, 1980


        Mr. John W. Clark Trackman

        731 Spring Street Employee No. 71.8386

        New Haven, Connecticut

        Dear Mr. Clark:


        I have reviewed the transcript of your hearing held on August 8, 1980, at the Office of the Assistant Division Engineer in New Haven, Ct., in connection with the following charges:


          1. 'To determine your responsibility, if any, for your personal injury which occurred on may 14, 1980, at approximately 11:45 A.M. at Cedar Hill Yard.


          2. To determine your responsibility, if any,

          for your alleged violation of Safety Rules

          3000(a) and (b) and 3111. Also, at the same

          time, a review of your prior safety record

          will be made.'


        The testimony given at the hearing indicates that you are guilty and bear the responsibility for the injury sustained to yourself. The discipline assessed to you shall be a formal reprimand, and it will be made a part of your personal record.


        You should review and become familiar with the Conrail Safety Rule Book and adhere to its requirements in order to prevent needless future injuries.

                      Award Number 2433 Page 3

                      Docket Number 1·57-2k;M


        Yours truly,.


        Isl R. W. Barnard

        R. E. BLrmrd

        Division Engineer


        YdBI3-jta


Organization's position is summarized as follow: Claimant vas disciplined for alleged responsibility by him in violation of safety Rules 3000(a) and (b) and 3111 which are as follows:

        SAFETY RUIES


        "3000. Injured employee must report immediately:


                (a) Inform imtediste supervisor, even though extended injury appears trivial. When a person in charge is not in immediate vicinity inform him at earliest opportunity but not later than quitting time on the day of occurrence.


              (b) Obtain medical attention."


        "3111. To use bar or lever:


                (a) Place it securely with firm bearing under or against the object.


                (b) Assume a brace position with firm footing; not sitting or standing on or stradling it.


                (c) Have all parts of body in position that they will not be caught between it and other object.


              (d) Grip it securely and move it slowly and steadily.


                (e) Maintain ample watch of base and/or contact point so as to make any necessary adjustments.


                (f) Use suitable block under bar, lever or raised object as is necessary."


The Organization further contends that, a review of the transcript #will firmlyy establish the Claimant clearly complied with the provisions of Safety Rules 3000 and 3111.
 Award Humber 24336
 Docket Number mw-24522

 Page 4

 la the opinion of the Board a review of `,.he whole record reveals that the Carrier did not make the case sad failed in its burden of proving a violation of the rules stated.* 3000 and 3111. For want of clear proof the claim :rill be sustained and the reprimand imposed on `,.he Claimant will be expunged from the Claim
        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 Agreement was violated.

 Claim sustained.

 Attest: Acting Executive Secretary
        National Railroad Adjustment Board


A W A R D
NATIONAL RAILROAD ADJZISTMENT BOARD
 By Order of Third Division

 By
 Rosemarie Breach - Administrative Assistant

 Dated at Chicago, Illinois, this 2'fith day of April. 1983.

 ~~1'JED

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