(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The discipline imposed upon Section Foreman N. W. Roberson for alleged violation of General Rules 'L', 'N' and Basic Rule 1, was without just and sufficient cause, on the basis of unproven charges and in violation of the Agreement (System File 9-29/2579).

 (2) The claimant's record shall be cleared of the charges leveled against him and he shall be compensated for all wage loss suffered."

 OPINION OF BOARD: The Claimant in this dispute had been in the employ of the
 Carrier for some twenty years, held the position of Section
 Foreman but was working as a Machine Operator at the time of the incident in
 question. The Claimant sustained an on-duty injury and was charged with vio
 lating the following Rules:





A Hearing was held on January 29, 1985, with the Claimant and his representative present. In addition to the Claimant, three other employes were called upon to testify at the Hearing. We add that the Claimant was the only eyewitness to the incident where he sustained the injury.
                        Docket Number MW-27105


Under the circumstances, we believe the following portions of the Claimant's testimony at the Hearing are pertinent:

        Conducting Officer Q: For the record of this hearing,

        would you state what you were

        doing at the time of the inci

        dent and just how it happened?

        Claimant A: Walking towards I-70 bridge north.

        When train came, I walked as far

        as I could to get out of the way

        of train within two pole lengths

        and I walked up on the bank there

        and stood on a tie. and inspected

        the train as it went by. After

        train went by, I stepped off the

        tie and where I was standing I

        stepped in a hole that was obscured

        by weeds.


        Conducting Officer Q: Could you see the hold that you

        stepped into?

        Claimant A: I did not even see the hole after I

        stumbled and got up. Looked like

        there was weeds growing right out

        of the hole, but you couldn't tell

        it was a hole.


The Organization takes the position that the Claimant was not responsible for the injury he sustained. It argues further that the Claimant did not violate the Rules stated in the charges. The Organization points to testimony contained in the record in sup Carrier takes the position that the Claimant did not exercise proper precaution, was not constantly stepped down from the tie on which he had been standing.

 Upon the record which is before us in this dispute, the position of the Carrier cannot be upheld. The Carrier's argument that the Claimant did not exercise proper precaution, was not constantly alert and careful to avoid injury is but speculation. There is no evidence in the record that the Claimant failed to use due care while performing his duties on August 21, 1984. Therefore, we find that the discipline imposed on the Claimant has not been substantiated on the record.

 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;

                        Award Number 26575 Page 3

                        Docket Number MW-27105


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.


                        A W A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest:
        Nancy ~R·er - Executive Secretary


Dated at Chicago, Illinois, this 30th day of September 1987.