Claimant sustained a leg injury while cutting rail at a derailment site on May 25, 1990. It is apparent that Claimant cut a section of bowed rail which sprung out and struck him when the tension was released. On June 15, 1990, a Roadmaster issued Claimant a letter of reprimand which reads, in part, as follows:

"On May 26, 1990 you discussed with Foreman Gallo the danger involved in this situation. Then at the derailment site Assistant Foreman Alfaro instructed you not to cut the rail that was damaged in the derailment. Assistant Foreman Alfaro instructed you to wait until the Foreman arrived back at the site and a decision would be made how to handle this rail that was bent like a horseshoe. You elected to cut the rail and sustained your injuries.

That rail should not have been cut until all safety measures had been taken. You failed to follow the Assistant Foreman's instructions and failed to wait until a safe way to handle this situation was determined. Safety is of the utmost importance in the discharge of your duties. You did not take the safe course of action. Your decision to cut the rail was an unsafe act with serious results."

Because this letter of reprimand is considered a disciplinary action, Claimant requested a hearing, which was conducted on September 7, 1990. Our review of the transcript of that hearing shows that Claimant was at the derailment site with his Foreman and Assistant Foreman. Despite the fact that each of these three men had between 15 and 20 years of service, none had seen rail bowed in this manner. The Foreman explained to Claimant that the rail would have to be cut, but pointed out this was a dangerous situation. Although they speculated how the rail might react when cut, none was certain. The Foreman told claimant to go ahead and cut the rail if he thought it could be done safely. He gave Claimant no advise as to where to make the cut or what safety precautions should have been taken. After discussing this with the Foreman, Claimant went to the rail to begin cutting it. The Assistant Foreman told Claimant to wait for the Foreman's instructions, but Claimant replied that he had already talked to him. When Claimant cut the rail, it sprang out, striking him in the legs breaking them.

Based upon the evidence of record, we conclude the letter of reprimand was improperly issued. Although the Assistant Foreman did tell Claimant to wait for the Foreman, it is evident he was not aware Claimant had already discussed with him what was to be done. The Foreman testified he advised Claimant to make the cut and left

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