Form 1 NATIONAL RAILROAD ADJUSTr,21NT BOARD Award No. 8256
 SECOND DIVISION Docket No. 7677
 2-MP-CM-18o



Parties to Dispute: ( (Carmen)

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 employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act approved June 21, 1934.
 Form 1 Award No. 8256
 Page 2 Docket No. 7677
 2-MP-CM-180

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Claimants were employed by Carrier as Carmen at North Little Rock, Arkansas. On August 6, 1976, Claimant Bradley held a regular assignment as driver of an emergency road truck operating out of the Car Department. Such trucks are sent out on the line to repair bad order cars. On August 6, 1976 Claimant Whitmire was first out on the overtime board and he was called to assist Driver Bradley on an emergency road call.. On that date a freight car (ACFX 15650) had been set out at Bierne, Arkansas due to failure of a journal. Claimants Bradley and Whitmire responded to that call and commenced repairs on the freight cars. While they were working, one of the hydraulic jacks gave way causing the car to fall and the jack handle flew out and struck Cla-want Whitmire in the face causing a se~,,rere injury. Following the accident Carrier's Vice President of Engineering issued a Memorandum to supervisory personnel under date of August 18, 1976, pertinent parts of which read as follows:



One week later, under date of August 24, 1976, Claimants were cited for investigation as follows:


                              File: Investigations


        Messrs: C. Whitmire

        B. H. Bradley

Form 1 Award No. 8256
 Page 3 Docket No. 7677
 2-MP-CM-'80
 "Please arrange to report to the office of Master Mechanic
 4OO Yard Ramp, North Little Rock, Arkansas at 9:00 a.m.,
 Wednesday, September 8, 1976, for formal investigation
 to develop the facts and place your responsibility, if any,
 for your allegedly conducting yourself in a careless and
 imprudent manner while working on Car ACFX 15650 at Bierne,
 Arkansas at approximately 6:x-5 pn, August 6, 1976, resulting
 in a personal injury to Carman Whitmire.
 If you desire witnesses or representation, you must arrange
 therefore in accordance with applicable schedule agreement."

 Following their formal investigation on September 9, 1976 Claimants were advised by letters dated September 10,1976 of their dismissal from service as follows

        "Dear Sir:


        You are hereby advised that your record has this date been marked dismissed account of conducting yourself in a careless and imprudent manner while working on car ACFX 15650 at Bierne, Arkansas, at approximately 6:x:5 P.m.., August 6, 1976, resulting in a personal injux-y to Carman Whitmire and your violation of General Ruse %", basic ruse 216, paragraph (c) and (d), and basic rule 217 of the Uniform Code of Safety Rules. Your record now stands dismissed."


On September 27, 1576 the instant claims were filed for their reinstatement. Carrier returned Claimant Whitmire to service on January 19, 1977~and Claimant Bradley on April 25, 1977. In Carrier's words, it returned the employees to service when it concluded that they had been "sufficiently disciplined". Carrier maintains that the differential in the periods of suspension is justified becau.se Bradley was more experienced and because he had a poor prior safety record. The claims for retroactive reinstatement and damages for time of dismissal to dates of actual reinstatement were not settled on the property and have been appealed. to this Board.

 It is well settled that when a Carrier's disciplinary action is challenged. under a contract provision like Pule 32, the Carrier has the burden to show the: following: 1) The employee was accorded a fair and impartial investigation; 2) The record contains substantial evidence to support a conclusion that the employee was guilty as charged; and, 3) The discipline imposed was appropriate in the circumstances of the case. In the present case the amount of discipline wa.s in effect, reduced by Carrier, from dismissal to suspension without pay. The uantum of discipline, as such, is not challenged in this case but the fairness of the investigation and the evidence of wrongdoing are questioned by the Organization. We find persuasive, the Organization's contention that the Carrier prejudged the Claimants' guilt and effectively removed the possibility of a fair and impartial investigation when the Vice President of Engineering circulated the memorandum of August 18, 1976, suipra, in which he announced his conclusions regarding their culpability. %,oreaver, it is our judgment that Carrier has failed to prove by probative evidence on the record that Claimants conducted themselves
 Form 1 Award. No. 8256
 Page 4 Docket No. 7677
 2-MP-CM-'80

 in a "careless and imprudent manner". Carrier's entire case is built upon after-the-fact speculation deduced from circ=tantial evidence found at the scene of the injury on the day after the accident. The claims must be sustained but the measure of damages is established contractually by Rule 32(d).

                          AWARD


      Claim sustained to the extent indicated in the Findings.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Second Division


Attest; Executive Secretary
 National Railroad Adjustment Board

 --- Rrbsemarie Brasch - Aclministrative Assistant

 Dated'-'at Chicago, Illinois, this 5th day of March, 1980.