Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10484
 SECOND DIVISION Docket 1o. 9514
 2-C&NW=CM-'85
 The Second Division consisted of the regular members and in
 addition Referee Edward M. Hogan when award was rendered.
 (Brotherhood Railway Carmen of the United States and Canada
 Parties to Dispute:
 (Chicago axed North Western Transportation Company
Dispute: Claim of F3nployes_-
1. Carman Apprentice T. J. McManus was unjustly. assessed five days actual suspension plus an additional five days which had been previously deferred on October 9, 1980.
2. Carman Apprentice T. J. McManus was erroneously charged with negligence while operating Company equipment on September 26, 1980.
3. That the Chicago and North.Western Transportation Company be ordered to make whole Carman Apprentice T. J. McManus, with all seniority rights,; vacation rights, holidays, sick leave benefits; and all other benefits that are a condition of employment unimpaired, and compensate him for all time lost plus 6% annual interest on all such lost wages in accordance with Rule 35.
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 employes 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 was assessed a 5 day suspension (which actuated a previously imposed additional 5 day deferred suspension) on October 9, 1980, following a formal investigation which was held on October 2, 19;80:: Claimant had-been informed on September 29, 1980, that he was to appear for a formal investigation on the charges of:



impartial investigation and that the. Carrier failed to prove the charges as.
 alleged. The Carrier denies the allegations of the organization.
 Foiryr,, . , -;,_ . _ . . `' Award No. 10484
 Pa g,,~2.. ,,_.~ -._ Docket No. 9514
 2-C&NW-CM-' 85
»pr~r:_n?v%ew.of the"records indicates that on September 26, 1980, the Claimazat_ was- operating a moveable crane. In short, during his operation of the crane, t::crane ran over an obstacle (i.e., a car horse), the result of which causeq-,a =:punctured tire.
.,~.V;..Og.,of the contentions-'of the Organization involves an alleged procedural dq,fqct,pin: :the handling ,.of=,this claim in that the Claimant did not receive a full f-zv, :days warning::pribr to his formal investigation. However, our examination of the record.'.ihdicates that, while the Claimant properly noted his objection on the record, the Hearing Officer also properly offered to postpone the formal investigation. The Claimant indicated that he did not wish to postpone the formal investigation. With other factual circumstances, we may be inclined to agree with the position as advocated by the Organization in raising this procedural objection. However, where the record clearly indicates that the Claimant waived his right to the five day notice by his declination of the offer toc.p:ostp'one the investigation, we find that there has been a waiver of this requirement on behalf of the Claimant. (See also Second Division Award 9260; also, Third Division Awards 22703 and 22723.)
We also cannot agree with the position of the organization that the Carrier has failed to prove the charges against the Claimant. Long-standing precedent of this Division and other Divisions of the National Railroad Adjustment Board has consistently held that this Board is not a trier-of-fact, and that absent arbitrary, capricious or discriminatory behavior or an abuse of managerial discretion, this Board will not upset the findings as adduced at the formal investigation. We find no such conduct on the part of the Hearing Officer to support our overruling of the findings made by the Hearing Officer . Further, the record indicates that the Claimant admitted that he had run over a car horse and that the tire on the new crane (approximately one month old) was punctured. Given the admission of the Claimant and other facts as adduced at the formal investigation which we have throughly reviewed, this Board can reach no other conclusion.
Lastly the Organization argues that the participation at the formal investigation of Mr. Maybee was improper. The Organization cites in their submission Award 7119 of this Division:

Form 1
 Page 3

Award No. 10484

Docket No. 9514-''

2-C&NW-CM-' 85'-'


Although the Award cited goes on in detail in the submission of the Organization, we find the principles as annunciated above controlling.-, We do'nat find a similar set of circumstances which was present in the case involving Award 7119. In fact, the record before us contains an admission .bg. theClaimant. Applying the precedent as annunciated in the above Award, we must,-`~ review each case as to its own set of circumstances. In our thorough review of the instant case, we do not find that the participation of Mr. Maybee was such that we would be compelled to overturn the decision and findings of the -Hearing Officer. Although we have seriously weighed the contentions of the Organ= ization, we do not find such conduct present in this case-.
A W A R D
Claim denied.
Attest: ;~/94t-osd

Dated at Chicago, Illinois, this 7th day of August 1985.
NATIONAL RAILROAD ADJUSTMENT, BOARD
By Order of Second Division ~ `