Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39337
Docket No. MW-39690
08-3-NRAB-00003-060545
(06-3-545)

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 Division - ( HIT Rail Conference PARTIES TO DISPUTE: (Soo Line Railroad Company (former Chicago, Milwaukee, ( St. Paul and Pacific Railroad Company)

STATEMENT OF CLAIM:





FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
Form I Award No. 39337
Page 2 Docket No. MW-39690


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.


This Division of the Adjustment Board has jurisdiction over the dispute involved herein.




The Claimant injured his right thumb when it was caught between the ball of the rail and the moving part of a derail he was closing.


Our review of the on-property record does not show that any procedural objections were timely raised or preserved for determination by the Board. On the merits, it is noted that Rule 318 specifically warns employees to keep feet and hands away from the moving parts of a derail device while opening or closing it. The Claimant did not keep his right thumb out of the range of motion of the moving part of the derail in question. While he claimed the reason for deviating from established procedure was to steady himself in the slippery conditions created by ice and snow, none of these factors were noted in the written report of injury he completed. The check box for "Snow" on the form is not checked. In the space for listing other factors, he wrote in "none" along with a note that the derail should have been closed by train personnel.


Given the foregoing, we find the Carrier's determination of the Claimant's culpability is supported by substantial evidence in the record. The discipline imposed was not shown to be unreasonably harsh or excessive in light of all relevant circumstances. Accordingly, we must deny the claim.


Claim denied.
Form I Award No. 3933'7
Page 3 Docket No. MW-39690
08-3-NRAB-00003-060545
(06-3-545)



This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.



                      By Order of Third Division


Dated at Chicago, Illinois, this 29th day of September 2008.