NATIOMIL RAILROAD AAIUSTMENT BOARD
THIRD DIVISION Locket Number MW-25817
James Fbbert Cox, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Terminal Railroad Association of St. Louis
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood chat:
(1) The thirty (30) days of deferred suspension imposed upon Track
Laborer 0. Rodriquez for alleged failure 'to avoid injury to yourself' on
March 23, 1983 was arbitrary, without just and sufficient cause and on the
basis of unproven charges.
(2) The claimant 's record shall be cleared of the charge leveled
against him and he shall be compensated for all wage loss, it any, suffered.
OPINION OF BOARD: Track Laborer Rodriquez was given a 30-day deterred
suspension in March, 1983 for failure 'to avoid injury to
yourself'. At the time of his injury he had more than 11 years service with
the Terminal Railroad.
The Track Foreman testified that, at the time of the occurrence,
Rodriguez had been performing work as instructed, taking off four bolts and a
joint in the course of changing the rail. Three bolts were out and the
fourth one had only a few more threads before it would to removed. A jack
operated by another individual in the crew slipped out beneath the rail upon
which Claimant was working causing it to jump laterally and strike Claimant
in the left foot. Claimant was, the evidence indicated, performing his
duties in standard fashion approximately 2-1/2 feet way from the rail. The
jack was positioned four or five ties away. There was no evidence with
respect to the discipline accorded the employes operating the jack.
Although Claimant had a history of work-related injuries, the March,
1983 injury does not appear to have been caused by either his negligence, a
violation of any work Rule or a failure to follow instructions. There is no
evidence that Claimant was peforming his work in an unsafe manner or that,
under the circumstances of his assignment, he should have moved way from the
rail as it was being jacked up.
The 30-day deferred suspension is to be removed from Claimant's
record.
Award Number 25600 Page 2
Docket Number W-25817
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 Dnployes 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.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. D r -Executive Secretary
Dated at Chicago, Illinois, this 22nd day of August 1985.