Form I NATmNAL RAILROAD ADJUSTMENT BOARD Award No. 9415
 SECOND DIVISION Docket No. 8945
 2-ICG-CM-'83



Parties to Dispute:

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 as approved June 21, 1934.

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

Claimant R. B. Mixon has been employed by the Carrier for approximately twenty-seven years. On the date giving rise to the instant claim, Claimant was employed as a truck driver.
 Form I Award No.9415
 Page 2 Docket No. 8945
 2-ICG-CM-183
 By letter dated September 4, 1979 Claimant was advised of a formal investiga
 tion to be held on September 11, 1979 to determine whether Claimant had reported
 an accident to the truck (m4016) he was assigned to drive on August 31, 1979 and
 whether he left that truck unattended without proper clearance of the Piggyback
 Lead. After the investigation, Claimant was advised by letter dated September
 26, 1979 that he had been found guilty of the charges and, consequently, was
 suspended from service for a period of thirty calendar days without pay beginning
 September 26, 1979.
 Believing the discipline assessed to be unjust and a violation of the
 controlling Agreement, the Organization processed a claim through the appeal and
 conference procedures, and ultimately to this Board.
 It is the position of the Organization that the evidence adduced in the hearing
 did not prove beyond a reasonable doubt that Claimant was guilty of the charges
 resulting in his removal from the truck job and suspension from service for thirty
 calendar days. The Carrier's conduct, it is asserted, violated Rule 39 of the
 existing Agreement, which reads:
 "No employe shall be disciplined without a fair hearing by a
 designated officer of the Carrier. Suspension in proper
 cases pending hearing, which shall be prompt, shall not be
 deemed a violation of this rule. At a reasonable time prior
 to the hearing, such employe shall be apprised of the precise
 charge against him. The employe shall have the right to be ·.r0
 there represented by the authorized committee. If it is
 found that an employe has been unjustly suspended or dismissed
 from the service, such employe shall be reinstated with his
 seniority rights unimpaired, and compensated for the wage loss,
 if any, resulting from such suspension or dismissal."

 It is the Organization's contention that the Carrier's Hearing Officer at the investigation hearing expanded the charges set forth in the charging letter by including "failing to fill out properly executed accident form," and raising Rules 638 and 638(g) of the Safety Rules.




Form 1
 Award No. 9415
 Page 3 Docket No. 895
 2-ICG-CM-183

 The Organization asserts that the language of these Safety Rules are clear in referring to accident forms involving highway accidents, which forms would be totally irrelevant in the instant accident occurring on Company property and in the train yard. The Carrier contends that the safety rules have application when an accident occurs anywhere.



The Organization contends that this Rule 23 was improperly introduced at the hearing by the Hearing Officer, expanding the charges against Claimant and failing to afford him a fair and impartial hearing. At the same time, the Organization contends that Claimant did exercise precaution to prevent damage to the vehicle and that the accident did not involve state or local laws under Rule 23.

 Assistant Master Mechanic W. C. Campbell offered the charging letter, served as the Hearing Officer at the investigation, and signed the letter imposing the disciplinary suspension upon Claimant. The record also reveals that it was Campbell, as Hearing Officer, who first questioned concerning whether Claimant had made a written report of the damage to vehicle ND4016 and referenced Safety Rules 638 and 638(b) and Rule 23 of the Superintendent's Bulletin. However, it is the conclusion of the Board that this conduct by Campbell did not expand the charges against Claimant, but was intended to establish the duty of Claimant to make report of the accident incurred to the vehicle he was driving on August 31, 19790

 The conclusion of Mr. Campbell that Claimant was found guilty of both charges against him and, accordingly, should suffer a thirty-calendar day suspension without pay is not supported in the record of this case. Clearly, the evidence pertaining to the charge of leaving the truck unattended without proper clearance of the Piggyback head is not sufficient. Claimant and Carman Shelton, who was assisting Claimant on the day in question, both testified that Claimant did not get out of the truck and both were of the opinion that there was enough clearance. There was no eyewitness to this alleged incident. The only other testimony concerning it came from General Car Foreman H. Z. Smith, as follows:


Form 1 Award No, 9415
 Page 4 Docket No. 89+5
 2-ICG-CM-183











Even if Smith's testimony is credited over the denials of Claimant and Shelton, that testimony does m t establish that Claimant left his truck unattended. There is no showing of more than that Claimant got out of the truck to check the rear to determine with greater certainty that there was proper clearance. Such conduct cannot reasonably be characterized as leaving one's truck unattended because Claimant was then, in fact, attending to the truck in a manner reasonably called for under the circumstances.

 The charge that Claimant failed to report the accident to vehicle MD4016 on Friday, August 31, 1979, is found supported in the record of the investigation. The charge is not covered by the language of the Carrier's Safety Rule 638, but is covered by Rule 638(g). .That rule is not explicitly limited to accidents occurring on public roadways although such accidents are obviously included in
 the rule. All accidents, no matter haw trivial, are to be reported to one's ~_,r
 imme diate supervisor. Claimant made no effort to report this to his immediate
 supervisor. Indeed, he testified thathe did not even know who his immediate
 supervisor was on August 31, 1979. Although it is found that Claimant did not
 attempt to hide the accident and that there were supervisors (none of whom were
 Claimant's immediate supervisor) and. others to whom Claimant indicated that his
 vehicle had been involved in an accident, and who viewed the damage to the right
 front fender of the vehicle, Claimant was not excused thereby from reporting
 the accident to his immediate supervisor.
 There is no evidence in the record to show that Claimant was required to
 make any additional report to "Special Agents" as implied by questions propounded
 by the Hearing Officer in the investigation.
 Under all of the circumstances of this case, wherein Claimant made no effort
 to conceal the fact that damage was done to his vehicle on August 31, 1979 and
 readily admitted such fact to Carrier supervisors on that date; and wherein the
 damage was relatively minor to property only and resulted from what management
 recognized as merely "poor judgment"; and wherein one of the charges against
 Claimant has not been proven and the remaining charge is in the nature of an
 unintentional but technical rule violation; it is the determination of this
 Board that the thirty-calendar-day disciplinary suspension was an unreasonably
 severe form of punishment.
 Claimant, an employe of the Carrier for approximately 27 years, could well
 have been expected to respond to a much less severe disciplinary suspension. ._W
 Consequently, the Board will order that the disciplinary suspension be reduced
 Form 1
 Page 5

 Award No. 9415
 Docket No. 8945
 2-ICG-CM-183

 to one calendar week beginning September 26, 1979 at 7:00 a.m. with other remedial orders as forth in the Award.

 A W A R D
The claim is sustained to the extent-that the Carrier is ordered to reduce the thirty-calendar-day disciplinary suspension to a seven (7) calendar day disciplinary suspension, as set forth above, and is ordered to pay Claimant for all lost wages resulting from the excessive suspension from October 2, 1979 at 7:00 a.m. forward with his seniority rights unimpaired.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division


Attest: Acting Executive Secretary

By ~ .._.._.

Dated at Chicago, Illinois, this 16th day of March, 1983.