(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The dismissal of Extra Gang Foreman C. J. Black, the 30-day suspension of Section Foreman Z. Extra Gang Laborer D. E. Dykstra were without just and sufficient cause; on the basis of unproven charges; and wholly disproportionate to their respective responsibilities for the Truck No. 4027 on January 26, 1972 (System File MW-MOB-72-100).

 (2) Claimant Black be restored to service; the record of all three claimants be cleared of the charge; Claimants Black and Jordan each be allowed pay for all time lost - all in conformance with Rule 20(g) of the Agreement.

 OPINION OF BOARD: This dispute concerns disciplinary action against three
 (3) employees regarding responsibility in connection with the collision of Train DM-4 and a hi-rail truck on January 26, 1972. After investigation, Carrier dismissed Extra Gang Foreman, Black; suspended for thirty (30) days Section Foreman, Jordan; and suspended for ten (10) days (deferred) Extra Gang Laborer, Dykstra.

 On January 26, 1972, in the afternoon, the Claimants, utilizing Black's hi-rail truck and equipment, were assigned to repair a track which had pulled apart. Foreman Black had in his possession a "line up" of operating trains, however, it had expired at 12:30 P.M. Foreman Jordan determined the location of one remaining train by placing a telephone call. Although the information suggested that proximity of the three Claimants. Although there were no personal injuries, the hi-rail truck, a drill and a saw were damaged, and there was some damage to the Engine of Train DM-4.

 The issue to be determined is whether Claimants' failure to utilize flagging procedures warranted discipline, and if so, whether the discipline imposed was excessive.


It is unquestioned by Claimants that under the circumstances, the Carrier's operating procedures required safety precautions.

 Claimants should have placed on the track devices known as "torpedoes." when a train strikes and required to reduce speed for one mile and to activate certain whistle procedures. In addition to emp warn that there is obstruction on the track. While the record is not precise in this regard, it appe the right-of-way. In the event of an emergency which precludes use of a Flagman, torpedoes, and (assumedly) fuses, a message should be directed to the train dispatcher so that he can take appropriate warning action.

          Although it was an overcast day, with vision somewhat obstructed

(and the repair site was near a curve), Claimants utilized none of the above described procedures. fhey insisted that all three (3) men were needed to perform the repair work and thus, it was not possible to spare anyone to serve as a Flagman. Torpedoes were not used because Black only had one available, which was not in p His failure to use same was never explained, nor did Claimants suggest any reason for failure to contact the dispatcher, In the main, the Foremen suggest that the real culpabi
Initially we will consider the Foremen's responsibility. Upon a consideration of the entire record we find that their disregard for the safety operating rules caused the collision. Black was in the prime position of responsibility. Although he The track supervisor testified that torpedoes were available at Bussey on the day in question, and that Black had not requested torpedoes at any time reasonably related to the in a rather cavalier disregard for safety in another manner. The claimants waited at Bussey for a Burlington Northern train to pass before proceeding to the site of the broken rail. At that time, Black obviously knew that he only had one defective topredoe, Not only did he fail to attempt to obtain any torpedoes, he never even mentioned, to the other two claimants, that he did not have the required equipment. In point of fact, Jordan had, in his car at Bussey, a supply of torpedoes, yet Jordan was not aware that Black did not have adequate safety material until the Claimants arrived at the location where the rail was to be repaired. Had Black been concerned enough to mention to his co-workers his shortage of safety equipment or exhibited any outward manifestation of concern, the torpedoes co remained silent, apparently prepared to proceed to the damaged rail without concern for safety facto of proper equipment would have avoided the collision.
                Award Number 20101 Page 3

                Docket Number ',IW-20329


We have referred above to the fact that Black's only torpedoe was not in proper working order. It did not contain a "lead", however Black testified that he could have wired the torpedoe to the track. He did not do so because he desired to save it in the event the rail "Broke.. in two we could put that on the rail and warn the train to be on the lookout for a flag."

 A determination of fault in a collision is often a difficult resolution. We do not suffer from s and completely aware of, but ignored, the safety measures required of him.

 Foreman Jordan was equally aware of the detailed safety requirements of Carrier. Although he was not aware of the lack of proper flagging equipment until arrival at the that he acquiessed in the determination to proceed absent required safety precautions.

 Concerning Foreman Black, - upon the entire record, the Board finds that none of his substantive procedural rights were violated in any manner. Substantial and credible evidence was presented at the investigation, including claimant Black's own Board will not disturb an assessed penalty unless it finds that Carrier's decision was so unjust, unreasonable, artibrary, capricious or discriminatory so as to amount to an abuse of discretion. (Award 19433 (Blackwell)). Upon consideration of the matters discussed above we are unable to make such a finding in this case, and we will deny Black's claim.

 Concerning Foreman Jordan, for the same reasons cited immediately above, we will deny Jordan's claim,

 Concerning Laborer, Dykstra, the Board is of a different view. While it is well established that this Board may not substitute its own judgement for Carrier's, at burden of proof by a substantial showing of evidence. It may be that Carrier focused its attention upon the two (2) Foremen and tended to be less concerned with the Laborer. But for whatever reason, the Board is not convinced that Carrier ever established any culpability on the part of Dykstra. It must be remembered that the charge against Dykstra dealt with "responsibility." Quite tersely we wonder, from a review of the record, what "responsibility" Dykstra had, or what influence he could have exercised.

 At the hearing, Dykstra was questioned minimally concerning his actions and/or decisions. It appears that he was never issued Carriers' operating rules. On the day was to assist Black in changing the rail, On prior occasions he has used flagging equipment which wa by another crew. There is nothing to suggest that he was required to maintain his own supply of safety equipment. At the investigation, a number of Operating
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                Docket Nmmber MW-20329


Rules were read into the record, and Black and Jordan were asked if they were familiar with the rules. When the last Rule was read into the record, Dykstra was asked if he understood it. He replied in the affirmative. But, understanding a rule as it is read to you does not imply prior familiarity, especially when it was unrebutted that he had never been issued the rules. As stated above, the Board feels that Carrier failed to establish, by substantive evidence that Dyks authority. We find no evidence to suggest that in his position he could have exercised any meaningful discretion, and accordingly we question that Carrier established any degree of "responsibility" for the collision on the part of Dykstra. While it is true that his punishment was not severe, nonetheless, in the claim, Dyk charge. We believe that he is entitled to that consideration. We will sustain the claim as it pertai
        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

 That the Agreement was not violated concerning Claimants Black and Jordan. That, the Agreement was violated concerning Claimant Dykstra.

                      A W A R D


        Claim of Black and Jordan is denied. Claim of Dykstra is sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


        ATTEST: Executive Se r


Dated at Chicago, Illinois, this 11th day of January 1974.