Frederick R. Blackwell, Referee


            (Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employees PARTIES TO DISPUTE: (Norfolk and Western Railway Company ( (Involving employees on lines formerly ( operated by the Wabash Railroad Company)


                        STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7143) that:


            (1) Carrier violated the provisions of the Schedule for Clerks, effective May 1, 1953, specifically Rule 28, paragraphs (a), (b) and (d) when on December 2, 1971, it arbitrarily, capriciously and unjustly assessed a five (5) day penalty against Messenger W. J. Crist,


            (2) Claimant shall now be paid for time lost as a result of Carrier's unjust action.


            (3) Carrier will now be required to pay interest on all time lost at the rate of one percent compounded monthly.


            OPINION OF BOARD: Following hearing the claimant was assessed a five (5) day

            suspension for his responsibility regarding damage to a com

            pany vehicle which occurred while he was operating the vehicle.


            Petitioner contends the discipline was arbitrary, capricious, and unjust in that: 1) one of t Carrier violated the time limits and hearing provisions in Rule 28 (b) and the "prompt" hearing and decision requirements on an appeal under Rule 28 (d); and 3) the hearing evidence does not support the findings of responsibility on the part of claimant.


            The facts underlying Petitioner's first contention are that the Assistant Superintendent conduct the letter advising claimant of the findings of responsibility and of the discipline. The Superinten is therefore argued that, in rejecting the claimant's appeal and "By giving his written approval to the initial decision", the Superintendent prejudged claimant's right to appeal to him. Essentially this same argument was considered and rejected in Award 16347, wherein this Board stated that: "The fact that the Superintendent rendered the decision did not preclude his acting as the appeals officer..." We perceive no basis in the record before us for making a departure from this Award and, accordingly, we shall also reject the argument here.


.
                  Award Number 19763 Page 2

                  Docket Number CL-19764


Petitioner's second procedural contention is predicated upon Carrier's alleged violation of Rule that, upon written request, a hearing before the next proper official will be given an employee who is dissatisfied with the decision resulting from the initial investigative hea limits. The Organization letter on which this argument is based stated that the claim should be paid, "or set a time and place to discuss same," This does not amount to a written request for a hearing under Rule 28 (b) and we must therefore reject the argument as lacking any substantive basis. The contention concerning Rule 28 (d) also lacks any substantive basis and is likewise rejected. This rule provides that a hearing and a decision on an appeal shall be given and rendered as "promptly as possible." The hearing herein was given in 41 days and the decision was rendered 15 days after the hearing. We cannot on the record here say that these time periods were unreasonably long, especially since the claimant was not out of service pending appeal.

 We come now to the merits of the dispute. It is not disputed that the damage to Carrier's vehicle occurred during the course of q trip which claimant made more than once each day. Thus, claimant was familiar with the area. He was also familiar with the vehicle because he had driven it since it was purchased approximately one year before the occurrence of the incident under consideration here. The incident occurred in cloudy, raining weather at approximately 11 am.

 Claimant provided the only eye-witness testimony on the events leading up to the damage to Carrier's vehicle. He said that, after driving the vehicle over a rough railroad crossing, he turned the vehicle onto a concrete slab, whereupon the right fron then proceeded west and hit a steel fence poet on the right aide of the road. Claimant gave 30 feet as the distance from the point after making the left turn to the point of impact with the steel poet. Claimant testified that, in his opinion, the snow tires on the front wheels of the vehicle resulted in lose of steering ability and traction, and that these conditions caused the vehicle to go out of control when the right wheel went into the depression. However, he also testified that, although traveling at 5 miles an hour when at a distance of 30 feet from the steel post, and although he applied the brakes which functioned properly, he hit the steel post "at approximately between 5 and 10 miles per hour.' Obviously the claimant gave both exculpatory and incriminating testimony. Apparently Carrier gave cr too fast for the conditions. Consequently, on the whole record, there is substantial evidence to sup assessment of discipline therefor and, accordingly, we shall not disturb Carrier's action.

      i


.;:; · ~.xy:~
 _t ~;;: .:
                Award Number 19763 Page 3

                Docket Number CL-19764


        FIfnT:,S: The 17vird Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the lbmloyea involved in this dispute are respectively Corrier and F.~:.nloyes within the meaning of the Railway Labor Act, as approved Jwzo 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the
 disp;c,`,c involved herein; aT.d

        That the Agreement was not violated.


                      A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTN3Nf HOARD

                          By Order of Third Division


ATTEST: 40 49. )C~r~
        Executive Secretary


Dated at Chicnao, Illinois, this 25th day of May, 1973.

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