(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The ten (10) days' deferred suspension imposed upon Truck Driver G. W. Church for alleged violation of General Notice, Paragraphs 1 and 3; General Rules 'L' and 'N'; and Basic Rules 1(a) of the Uniform Code of Safety Rules was unreasonable, unwarranted, on the basis of unproven charges and in violation of the Agreement (System. File 0-97/2579-23).

 (2) Mr. G. W. Church shall be afforded the remedy prescribed within Article 23, Rule 6 of the Agreement."

 OPINION OF BOARD: Claimant is employed in Carrier's service as a truck driver.
 He was assigned to Extra Gang 160 when the disputed incident occurred.

 On December 12, 1983, Claimant sustained an on-the-job injury. On December 30, 1983, he was instructed to appear for formal investigation to determine his responsibility, if any, in connection with the injury he sustained when he fractured t Bolt Machine on the back of a maintenance truck near Mile Post 260, Pole 20, in the vicinity of Clinton, Missouri. In its notice, Carrier charged Claimant with violation of the following Rules:







                        Docket Number MW-26314


          Basic Rules 1 (a) (part reading) ... "Rules cannot be written to cover every possible situation that may arise in connection with each and every individual task connected with your work; therefore, certain definite responsibilities rest upon you, namely: (a) Protection of yourself


At the Hearing, Claimant testified that he wrapped the chain around the bolt machine between the gear box and the engine and hooked the other end of the chain onto the bucket pin of the backhoe. He then told the backhoe operator to raise the backhoe about six feet off the ground. However, as the Claimant took the socket end off the bolt machine up over the side of the truck, the machine dropped on Claimant's finger.

 Claimant's Foreman freely admitted at Hearing that the backhoe operator was at fault, not the Claimant. According to the Foreman, Claimant violated none of the Safety Rules in connection with the incident at issue. Moreover, the Foreman stressed that Claimant was one of the more "safety conscious" employes under his supervision.

 Nevertheless, the Carrier maintains that Claimant was careless and did not exercise proper care to avoid the injury he sustained while assisting in loading the bolt machine. Carrier discounts the Foreman's forthright testimony concerning the incident, arguing that his testimony was mere opinion and personal belief that should not be considered probative on the issue of Claimant's negligence. Carrier further asserts that while Claimant may not have had control over the operator of the backhoe, it was his responsibility to make sure that he, personally, was not careless or did not disregard the safety precautions necessary in the performance of his assigned duties. In the Carrier's view, Claimant's carelessness arises from his failure to issue concise and unambiguous instructions to the backhoe operator. He should not now be permitted to shift the blame for his own omission to the backhoe operator. In sum, it is the Carrier's position that Safety Rules are meant to be followed at all times to protect employes from injury. Claimant's failure to abide by those Rules warranted the discipline imposed herein, and therefore Carrier requests that the Claim be denied.

 The Board has carefully reviewed the entire record, and finds itself in complete agreement with the Organization's view that Carrier has failed to sustain its burden of proving by substantial evidence that Claimant did indeed commit the Rule infractions of which he stands accused. Herein, it is apparent that the testimony pr performance of his duties. Moreover, we fail to see what additional instructions should have been is should not have been necessary for Claimant to instruct the operator to refrain from dropping the machine on his hand.
                        Award Number 26594 Page 3

                        Docket Number MW-26314


Undoubtedly the Claimant was injured as shown on the record. But that fact alone is not sufficient to show a violation of the Safety Rules. This principle has been reiterated time and time again by the Board. See, e.g., Third Division Awards 12535, 16600.

 We note that during the handling of this case on the property and in its Submission before the Board: the Organization raised a procedural objection, contending that Car decision following the investigation, pursuant to Rule 5 of the controlling Agreement. That argument is unpersuasive. It is well established that the postmark and postal stamped "Receipt For Certified Mail" have been accepted by the parties as proof of mailing notification and satisfy the requirements of the Rule. In this case, according to the evidence of record, the decision and notification of discipline was deposited on the 9th day, and was therefore within the ten day limit prescribed by Rule 5. Accordingly, this Claim will not be upheld on procedural grounds. However, as set forth above, it will be sustained based upon Carrier's failure in this instance to meet its burden of proof.

        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.


                      A W A R D


        Claim sustained.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:
        Nancy J. er - Executive Secretary


Dated at Chicago, Illinois, this 27th day of October 1987.