Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32720
Docket No. MW-33589
98-3-97-3-31
The Third Division consisted of the regular members and in addition Referee
Gerald E. Wallin when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Louisville &
( Nashville Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline (letter of reprimand) imposed upon Track
Repairman G. W. Litteral for alleged failure to perform his duties
safely and properly in connection with the personal injury he
sustained on January 9, 1996, was without just and sufficient cause
and on the basis of unproven charges System File 7(12)(96)/12(96222) LNR1.
(2) As a consequence of the violation referred to in Part (1) above, the
Claimant's record shall be cleared of the charges leveled against
him and the letter of reprimand shall be removed therefrom."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act, as
approved June 21, 1934.
Form 1 Award No. 32720
Page 2 Docket No. MW-33589
98-3-97-3-31
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
A 12-14 inch snowfall on the evening of January 8, 1996 caused several trees to
foul Carrier's Pine Mountain Branch line near Savoy, Kentucky. Claimant was using
a chain-saw to limb one of the trees in the deep snow when it shifted. One of its branches
caught in the strap of his safety chaps and threw him onto the track. which resulted in
a low-back sprain.
An Investigation was held on January 30, 1996, following the injury. No Rule
violation was cited in the Notice of Investigation. Moreover, no Rule was cited as having
been violated in the letter of reprimand Claimant was issued. Rather, the letter read.
in pertinent part, as follows:
"Working injury free requires employees to be aware of their
surroundings. Your failure to recognize and avoid danger resulted in a
personal injury."
We studied the on-property record in detail and thoroughly considered the
positions of the parties as well as the cases cited. That review compels the finding that
the Carrier has not satisfied the burden of proof it must meet when imposing
disciplinary action. The record simply contains no evidence that the method used by
Claimant was inherently unsafe. It is well settled in this industry that a work related
injury, ipso facto, is not proof of negligence or a safety violation. See Third Division
.wards 28917, 29319, 29574 and 30013. This finding is not moderated by the fact that
Claimant's Foreman chose not to challenge a similar letter of reprimand.
AWARD
Claim sustained.
Form 1 Award No. 32720
Page 3 Docket No. MW-33589
98-3-97-3-31
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 19th day of August 1998.