Form 1 NATI01`ML RAILROAD ADJUSTNDTT BOARD Award riot 8185
 SECOND Dl-VISIOIT Docket No. 7995
 2-BITI-EW-' 79



Parties to Dispute: ( (Electrical Workers)


Dispute: Claim of Employes:





Findings:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or emp'!oyes involved in this dispute are respectively carrier and eznc;loye idthin the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has ;jurisdiction over the dispute involved here in.

Following an investigative hearing, the Claimant received the following disciplinary penalty:




Form 1 Award TTo. 8185
 Page 2 Docket IT
                                          2-B-TI-E W-' 79


2n the accident referred to, the vehicle driven by the Claimant went off the road and overturned. While in an overturned position, it was struck by another vehicle passing by. Based on a report completed after the accident and the fact that the Claimant pleaded g zilty to a civil citation for negligent driving, the Carrier undertook the investigative hearing and thereafter issued the ten-day disciplinary suspension.

    The Organization raises two procedural matters in this dispute.


The first is that the Carrier improperly required the Claimant to be the initial witness in the investigative hearing, rather than presenting its own evidence as to Claimant's al eged guilt and then permitting the Claimant to defend himself against such evidence. it is clearly the usual procedure in disciplinary matters for the Carrier to present testimony and evidence at the outset. But the Organization pointed to no rule v:nich makes this a rigid requirement. Further, in this instance, the Claimant's testirrony was the cnly first-hand information which could be brought to the hearing.

 The second procedural objection has to do with the Carrier's citing of specific safety rules during the hearing arid in its subsequent notice of disciplinary action. The objection is on the grounds that the rules do not apply to Claimant's class of employes and also that they were not included in the notice given to him for the ~na es t:i.Love iz~ _~°:~:". Rie Board is satisfied that the record shows that the cited safety rules apply to all the Carrier's employes. As to their on~:issicn from, the notice of hearing, the Board finds the notice more than adequately precise to meet the requirements of Rule 30 when it referred to a hearing concerning "your responsibility in connection with accident with company vehicle near T4ishram, Washington, atoxt 1:40 Am, August 26, 1977". Such notice gave the Claimant and the Organization ample grounds for defense even without specifying the particular safety rules applicable to such an occurrence.

    As to the merits of the dispute, however, the Board finds that the

Carrier improperly disciplined the Claimant based on any of the findings
 of the investigative hearing. The Carrier had in hand the accident report
 acknowledged by the Claimant that he "fell. asleep" while operating the
 vehicle while on duty. Assuming this to be a fact, it is reasm able that the
 Carrier would parsue the matter through an investiative hearing to deter-mine
 if this involved operating a vehicle i n an unsafe manner. ':What, however,
 did the investigation shoe:': The ClaiMant testified that he sin, -'did not
 know" if he had fallen asleep, despite his signn;; the accident report
 admitting same. Under the circumstances, there co,.,ld be no independent finding
 t o show that Claimant w -as asleep. Other circuns Lances make i t seem doua tfull.
 He suffered a blow on his head -.~ez the accident, which could have confused
 his recollection. He had travel( ;d. only _one .Mile ,Then he went off the road.
 There was much testimony about the condition of the truck, i nclud.-i ng repeated
 instances of brake trouble. TestLro:W by another en:ploye fc-and s'>id mares
 on the road which shcved both that the driver 11-~d. app.-Lied his bra1les and also
 that the brakes on the left and right side of the vehicle did not apply
 evenly.
 Form 1 Page 3

 Award -To. 8185

Docket TSB 7595

2-BNi--mkr- 179


    The Carrier properly conducted a hearing to investigate the matter. It

must, however, give full weight to what such investigation develops and not
 simply rely on the single preexisting evidence in the accident report
 prepared just after the event. i-:any inferences can be dra--n from a review
 of the hearing record. One ,rhich does not come throu;yh with any clarity
 is a picture of an employe falling asleep while driving on duty to the
 extent of losing cc:nplete control. He did app -ly the: brakes approach.' ng a
 curve in a vehicle in auestionable condition. Did he, just at or prior to
 this moment, fall asleep? The proof is -.nsufficf.ent.

 A 4y A P, D

 Claim sustained, but the remedy is limited to that provided in Rule 30

 Attest: Executive Secretary
 National Railroad Adjustment Board

NATIOT'°-.Z R4IhF:OAD P.DJUST`:ET~'I' BWRD

By Order of Second Division


;osemarie Bras ch - -.a:::=.nis ~r ative Assistarrc

 Date at Chicago, Illinois., this 28th day of November., 1979.