BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

and

CN - WISCONSIN CENTRAL RAILROAD

Case No. 46

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



2. As a consequence of the violation referred to in Part 1 above, Claimant Boothe is
 entitled to the full remedy detailed in Rule 31(1) of the Agreement."
 FINDINGS:
 By letter dated March 18, 2009, the Claimant was directed to attend a formal
 hearing and investigation to ascertain the facts and determine whether the Claimant had
 violated any Carrier rules, instructions, and/or policies in connection with a March 26,
 2009, incident in which the Claimant sustained an on-duty injury. The investigation was
 conducted, as scheduled, on April 1, 2009. By letter dated April 16, 2009, the Claimant
 was notified that as a result of the hearing, he had been found guilty of violating USOR
 General Rule A and C, USOR Rule 100 and LIFE Rule Section II, 1, h, and that he was
 being suspended for five days. The Organization thereafter filed a claim on the
 Claimants behalf, challenging the Carrier''s decision to discipline the Claimant. The
 Carrier denied the claim.
 The Carrier contends that the instant claim should be denied in its entirety because
PLB NO. 6915 AWARD 46 the evidentiary record establishes that the Claimant is guilty as charged, because the Claimant was afforded a fair and impartial hearing, and because the discipline imposed

 was not harsh, arbitrary, or an abuse of discretion. The Organization contends th;

 instant claim should be sustained in its entirety because the Carrier failed to prove that any rule violation occurred in connection with this matter, because the evidence shows that the Claimant never entertained any doubts about the safety of his actions, and because the Claimant chose a course of action that was appropriately safe.

Board.

 This Board has reviewed the evidence and testimony in this case, and we find that the Carrier has failed to meet its burden of proof that the Claimant violated Carrier rules when he allegedly did not take the "safe course" as required by those rules. It is fundamental that just because an accident occurs and somebody is injured, does not necessarily mean that the employee did not act properly within the scope of the Carrier's safety rules. After a thorough review of the transcript, this Board finds that the Carrier simply failed to prove that the Claimant acted in an unsafe fashion while performing his duties on the date in question. Therefore, we find that the Carrier has failed to meet its burden of proof and the claim must be sustained.

 2

AWARD :

 The claim is sustained.

 PETER\

 Neutra ember

 CARRIER M BE OR ANIZA O ME BER

 DATED: ~'" ~~lf DATED:

 3