The Board, after hearing upon the whole record and all the evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended; this Board has jurisdiction over the dispute involved herein; and, the parties were given due notice of hearing thereon.
While working as a Trackman in a Maintenance Crew on October 26, 2004, Claimant sustained injury to his left foot while dismounting a Tie Handler machine. Claimant's left foot was said to have rolled outward, causing him to suffer a small fracture to the left side of the foot. At the time, Claimant was helping to prepare the Tie Handler to be switched off a siding for use on a bridge project in the vicinity of Norridgewock, Maine. There were no witnesses to the injury.
Although the Carrier determined Claimant to be guilty, as charged, of negligence in the performance of his duties, it is evident in study of the record that the Carrier conclusion is based on nothing more than speculation. In this respect, it was alleged that Claimant had stepped onto a side brace or rail catcher that is under the step, a brace that extends downward at a rather sharp angle, and that his foot slipped off it as he was dismounting the Tie Handler.
In this respect, a Carrier supervisory official who, investigated the injury was asked at the company hearing if he felt Claimant was in violation of Safety Rule 68b in the
Another Carrier witness who was the Manager Safety on the date of the injury was questioned as to whether he was able to draw any conclusion as to what he felt from his investigation had contributed to the injury. The Manager Safety responded to the question as follows: "Not really just basically speculation."
Claimant, an eight year employee, was said at the investigation to have numerous times gotten on and off the Tie Handler without injury and to have always performed his work in a safe and conscientious manner. Further, the record shows that Claimant had no prior reportable injuries.
In the circumstances, the Board finds that the Carrier has not met a necessary burden of proof to establish that Claimant was guilty, as charged, of negligence in the performance of his duties. As this Board stated in prior Award No. 39, the fact an employee suffers an injury does not in and of itself substantiate that it was due to a failure to be fully observant of safety rules or to have performed a work task in a negligent or careless manner.
Anthony F. Lomanto
Carrier Member