Upon the whole record and all the evidence, the Board finds that the parties herein are carrier and employee within the meaning of the Railway Labor Act. as amended. Further, the Board is duly constituted by Agreement, has jurisdiction of the Parties and of the subject matter, and the Parties to this dispute were given due notice of the hearing thereon.
Claimant, in stepping over unsecured ribbons of rail, suffered an injury when the rail turned on its side onto the arch of his foot.
The crew was cropping and welding used rail In order to lay out several new yard tracks. The rail were standing unsecured along the right of way.
of the gang to be careful of the rails laid out but unattached, particularly when the loader was working in, around and over the unattached rails.
There is testimony that ribbons of rail unattached almost have a mind of their own as they can roll or lash when cutting out bad spots and/or welding pieces together they can fall off of the blocking.
Claimant was working a distance from the loader. He walked away from his truck In order to hear over his radio. Upon completing his conversation and walking back to his truck, he spotted a weld that did not look right He moved closer, stepping over a ribbon of rail that turned over on his foot.
Claimant was charged with not being alert and/or attentive as In stepping over the loose rail, he stepped too close to the rail that turned over at the instant he planted his foot The ball of rail fell on the arch of his foot The ground was firm and it required lifting the rail off of his foot
The Carrier argues that when Claimant stepped over the rail, either foot must be in excess of seven inches from the rail to preclude this type of injury from occurring.
Also set forth in the Investigation is testhnony that the rail, in the heat, can whip or even roll.
What is known is that the rail turned and fell on Claimant's arch but no one witnessed the incident It is not known if the rail moved of its own volition. Claimant stated the loader was stationary when the incident occurred. The Carrier must prove that Claimant suffered the injury and in doing so, stepped too close to the rail. No one has come forth to testify that the rail was or was not moving on Its own. The only facts the Carrier knew was that the rail was seven inches in height and when the rail fell on his
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