alleged personal injury he sustained on October 17, 1994 was

without just and sufficient cause, based on an unproven charge and

in violation of the Agreement (System File T-D-866-H/MWB 95-04

lOAB BNR).

removed from his personal record."

Upon his return from vacation, Claimant reported to work on a new position on a welding gang at Minot, North Dakota, at 7:00 A.M. on October 17, 1994. In attempting to retrieve keys from the tool box on the truck bed, Claimant leaned over tools and equipment blocking his path. As he bent to lift the 25 pound box, he experienced re-injury to a previously damaged disc in his lower back.

On October 24,1994, Carrier directed Claimant to attend a formal Hearing five days later, subsequently postponed to November 7, 1994. On December 1, 1994, Claimant was assessed a letter of censure reading as follows:

"Censured by Burlington Northern for violation of Rule 1.1.2 of the Burlington Northern Rules of the Maintenance of Way Department for failure to be alert and attentive in connection with his personal injury at about 0700 hours on October 17, 1994."

Employees must be careful to prevent injuring themselves or others. They must be alert and attentive when performing their duties and plan their work to avoid injury."

The Carrier maintains that Claimant had previously received training on proper lifting techniques; that in reaching approximately three feet to obtain the keys in the tool box, Claimant ignored that training; that he had special reasons to be sensitive in this area, having been previously given 60 and 90 day leaves for treatment of his past and continuing back problems; and that it spends significant time, energy and resources in efforts aimed at insuring safety in the workplace.

The Organization asserts several procedural violations of Claimant's contractual rights. First, it contends that the notice of charges was so imprecise it prejudiced Claimant's ability to prepare his defense. Second, it argues that Carrier vaguely charged the Claimant with negligence, but found him guilty of violating its Rule 1.1.2. On the merits, the Organization maintains that the record is devoid of credible evidence of negligence; that there were no witnesses to this minor incident; that Carrier's Manager of Safety testified that the placement of the keys made their retrieval difficult; and that in a nutshell, discipline was imposed merely because an injury was incurred.

The Board finds the charges sufficiently clear to put Claimant on notice of Carrier's allegations, and there is no evidence in the record to suggest that he was in any way surprised or prejudiced by any lack of precision therein. Secondly, the Board finds the contention that Claimant was charged with one offense and found guilty of another to be without merit. Carrier's October 24,1994 notification to Claimant summoned him to a meeting to determine the facts and "your responsibility, if any" for his back injury, clearly implying a possible finding of negligence.

With respect to the merits of this dispute, the Board concurs fully with the Organization's contention that no rational justice system could mechanically equate injury with negligence. In our review of this well-developed record, however, we find substantial evidence to support the Carrier's conclusion that Claimant did not follow proper technique as he bent to lift a heavy tool box on a dark and rainy morning without moving the equipment and material that lay in his path. Particularly in view of Claimant's past record of serious back problems, we find nothing in the record evidence to suggest that Carrier's judgment was an abuse of discretion, or that the censure it issued was disproportionate to the offense.

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimants) not be made.