Foam 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7836
 SECOND DIVISION Docket No. 77+7
 2-C&iW-CM-' 79



Parties to Dispute: ( (Carmen)


Dispute: Claim of Em:ployes-











Fi ndi_ngS
The Second Division of the Adjustment Board, upon the whole x·ecoxd and all the evidence, finds that:

 The carrier ox carriers and the employe or employes involved :in this dispute axe respectively carrier and employe 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 pivotal question raised in this dispute is whether ox not the ten (10) days suspension was excessive.

 Our review of the record indicates that while Carrier's last minute postponement of the originally scheduled investigation from December 21., 1976 to December 29, 1976 and the timeliness and delivery method of the safety x·enri.ndex appear lackadaisical, we do not find that these develof:nents vitiate the integrity of ti-_e investi~ative pxoco ss. Claimant was provided a fair and impartial hearing.
 Fo'rrn 1 Award 1V'o.7836
 Page 2 Docket No. 771+7
 2-cs2rw-CM- · 79

 Rule 193 which is at issue here, -reads, "The red or blue flag, red or blue disc, or red or blue lights for the above protection rm,st be placed between the ,rails at least thirty feet from the end of the car nearest to the s-rritch of the track requiring protection, but always inside of the frog clearance point of such track. In case tracks have switches at both ends, this protection must be .provided at both ends of the tracks." It :is an explicit and well known ,railroad safety rule.

 In the instant case, Claimant was charged with an infraction that was fraught vrith potential danger to other employes and property. It was to be luxe inadvertent., but it could have been ha,rmfl;Ll.

 There is no question, after examining the pattern of events, that Claimant, at the very least, technically violated this rule. Bat, it is the result ,rather than the intent that undergi_rds the intended application of safety rules. Claimant was duty bound after he left the fore.nan ` s office to re-check the cars before pulling the car on the. west end. If he had performed -this inherently routine precaution, he would have noticed the ,red flag on the freight car coupler. In fact, he acknovledged at the investigation that he knew, "it was a violation of a rule of the cormpany".

 This BoaNd has consistently held that it would not substitute its judgement for that of the Carrier when it came to disciplinary actions, unless it could be she-van by solid probative evidence that the decision was arbitrary,, capricious, excess-1ve or an abuse of managerial discretion. (See Second Division Award 1+00J_) .

 On the other hand, this Board has consistently emphasized the im_poxtancs of progressive discipline to encourage employe rehabilitation.

 Balancing these decisional principles within the unique circumstances of this disp~ate, particularly the non-volitional character of his actions, we feel that the penalty ~.ras somewhat excessive. The act was certainly inexcusable, but we believe that a lesser ,penaJ_ty would have sufficed to insure 'the .proper enforcement o° Rule 1_93, deter future violatiCns and serve the cominensurate justice required by this offense.

 Accordingly, we will sustain Carrier's finding of guilt, but reduce the ten (10) days suspension penalty to three (3) days susphnsion and order Carrier to reimburse claimant back pay fox the seven (71 days lost.

 Claim sustained to the extent expressed in the Findings.
 Form 1 Page 3

Award No . 783&

Docket No. 7747

2-C-CM-`79


NATIONAL RAILROAD ADJUSTT,ENT BOARD

By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board



Dated at~ Chicago, Illinois, this 7th day of February,, 1979.