(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (Burlington Northern Inc. ( (Formerly Spokane, Portland and Seattle Railway Company)


      STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Rail

      road Signalmen on the Burlington Northern, Inc. (former

      Spokane, Portland and Seattle Railway Company):


              In behalf of Signal Maintainer J. W. Danley, Jr. for all time lost in

      connection with collision between motor car and U. P. Extra 312 West, subse

      quent investigation, and discipline of 30 days' suspension.

      [Carrier's File: SL 20(b) 1/6/71]


      OPINION OF BOARD: Claimant is a signal maintainer who was operating a motor car

      on a single track when it struck a train coming in the opposite

      direction. After a disciplinary hearing, claimant was assessed an actual 30 day

      suspension from which appeal was taken, It is the Organization's position that

      the appeal must be granted and the claim sustained pursuant to Rule 66 of the

      Agreement because the Carrier's Assistant Vice President to whom the appeal was

      directed did not respond within the 15 day time limit of Rule 66.


      The Carrier's position is that Rule 66 has been superseded by Article V of the August 21, 1954 National Agreement which allows 60 days from the date the appeal is received within which to respond. The Carrier's officer replied to the appeal well within the 60 days.


      We shall first dispose of this issue in order to determine whether or not we may consider the merits. There is no doubt that the parties herein had adopted the National Agreement. The record does not indicate any argument by the Organization to the contrary. The Signatn.en's Organization took the same position in a case before this issue. The Award No. 8712 in that case is coucroiling. It was found that Article V, Section 3 of the National Agreemenc of August 21, 1954 applies to discipline cases and that the 60 day time liuiit to answer the appeal would apply.


      As to the merits, we note from the record and from reading the transcript of the hearing that the charges were properly stated and no objections were made or adjournment requested. The claimant was represented and had opportunity to question Carrier's witnesses and to produce witnesses in his behalf. A number of prior Awards (17965, 17525, 16678, 16261), have held that objections to procedure and conduct of the hearing should be made prior to or at the hearing. Petitioner was furnished with a copy of the transcript and no violation of Rules relating to disciplinary proceedings or prejudice to Petitioner is indicated by the record.


i
                              Award Number 19996 Page 2

                              Docket Number SG-19674


        It is well settled and the number of Awards are so many that reference is not necessary to support t guided in considering the testimony. There is substantial evidence to support the Carrier's decision or attempt to determine demeanor and credibility of witnesses; there is not such flagrant abuse of discretion which would compel us to substitute the judgment of this Board for that of the hearing officer. Claimant admitted in his testimony that before the accident, he passed three signals, two yellow and one red, which gave notice that ae train or motor car was on the same track in the same block. The imperative need for safety in railroad operations demanded the exercise of caution sufficient to avoid the accident, and left no room to speculate on the possibility of proceeding further without risking an accident.


        The penalty assessed was not so excessive, arbitrary or capricious in the circumstances of this case as to justify action by this Board with regard to it.


              FINDINGS: The Third 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 Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;


        That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and


              The claim should be denied.


                              A W A R D


              Claim denied.


                                NATIONAL RAILROAD ADJUSTMENT BOARD

                                By Order of Third Division


                ATTEST: Executive Secrecary


        Dated at Chicago, Illinois, this 31st day of October 1973.


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