(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Burlington Northern Inc.

 STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

 (1) The suspension of Track Inspector M. W. Brecht from August 7, 1971 to September 6, 1971 was improper and in violation of the Agreement because








(2) The record of M. W. Brecht be cleared of these charges and that he be compensated for wage loss suffered (Rule 40 G).

 OPINION OF BOARD: Claimant is' a track inspector and had been working in that
 capacity for almost two years on the day of the accident.
 His motor car was struck by a train, which he did not know would be approaching.
 The objection to the decision and to the 30 day actual penalty was based upon
 the failure of the Carrier's notice of hearing to specify the Rule which he
 violated, failure to send copy of the notice to his local representative and
 failure of the Carrier to produce the train engineer as a witness. In addition,
 Petitioner contended that on the Saturday the accident occurred and on all
 previous Saturdays, Sundays and Holidays the train dispatcher did not issue a
 line-up during the time claimant had worked as a track inspector.

 The Carrier has argued that the notice was sufficient in that it stated that the purpose of the hearing was to investigate the facts which led to this accident, on a specified date, at a specified location in order to determine responsibility for the accident. Further, the Carrier responded that it offered to adjourn the hearing to give the local representative who did appear at the appointed time, an additional opportunity to prepare for the hearing. The Carrier also stated to the local representative that the engineer was not needed but that the hearing would be recessed to give notice to the engineer to be present at the hearing if the Petitioner so desired. As to the merits,


        the Carrier's position is that the claimant violated Operating Rule 35.


        There have been conflicting opinions as to the requirements of the Rule that the notice shall specify the violation. In this case, the hearing has disclosed that there was no prejudice to the employe which resulted from the form of the notice. Since the purpose of the hearing is to develop the facts in order that employes' rights may be preserved, the element of possible prejudice to the employe may be considered.


        The claimant testified that he had received the notice and that he vas represented by his General Chairman, Transcript p. 1 (page references of the transcript hereafter will be noted as Tr.p.). The opportunity to recess wag provided to allow for adequat, ~tut'ce to the represintatlve; also that the Carrier would write to request the engineer to be present, if the representative requested it, Tr,p,4. The represe.lcative stated that he would proceed, Tr,p,5, We find that the claim of procedural defects interposed by the petitioner are not sufficient to car ,:onsidcration of this case upon the merits,


        Claimant testified that he was examined concerning Maintenance of Wa· Operating Department Rules about one month before the accident and also that h. was very familiar with train movements on this subdivision, Tr.p,7. Circular Number 19, dated approximately three months before the accident was introduced and appears in the transcript at p.7. It stated that line-ups, "must be issued, and received by track car operators, in accordance with Safety Rules and Admoni. tions for the General Guidance and Protection of Employes and the Public;". Claimant did not deny receipt of the Circular, and also testified that he did not ask for or receive a line up, Tr.p.9, 10. Operating Rule 35 was read into the record of the hearing. It states: "A copy of the current line-up must be obtained---. Before placing operating any off-track equipment foul of a main track; before working on or ob. structing a main track." Claimant testified that he did not comply with thin Rule, Tr.p.27. Claimant also testified that he knew very well that he could expect train movements at any time on this subdivision, Tr.p.28.


        The sum total of the defense was that the claimant should be absolved because the train dispatcher did not issue the required line-ups on Saturdays. However, this case deals with the responsibility of claimant. The testimony clearly spells out and it is admitted that he knew what he should have done. He did not do what he was specifically directed to do by a Circular issued three months before the accident. He demonstrated in a test given to him only one month before the accident that he knew the operating rules. His failure to obey a specific safety rule cannot be excused.


        In measuring th= penalty assessed, we cannot condone a conscious violation of a rule c,-hich is designed to protect the employe and the public. To accept a practice over a period cf time wh_ch is destructive to safety, wit)' out complaint, display, a disregard for a fuc:damencal rule of the railroad induscry. A penalty to _ Lhis ; o:: claii::ant is not arbitrary or capricious


'f
                    Award Number 19998 Page 3

                    Docket Number MW-20007


        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidcnce, 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 invnlved herei:i; and

        That the claim should be denied.


                    A l! A R D


        Cirim denied.


                        NATIONAL. RAILROAD ADJUSTMENT BOARD

                        fy Order of Third Division


ATTEST: t
        ExecuLive Secretary


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