(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The suspension of fifteen (15) days imposed upon Machine Operator R. L. Procise was without just and sufficient cause, on the basis of unproven charges and in violation of the Agreement (System File MW-CR74-102).

 (2) The charges placed against Machine Operator R. L. Procise be stricken from his record and he be compensated for all wage loss puffered, all in compliance with
OPINION OF BOARD: This is a discipline case involving 15 days actual
 suspension assessed against Machine Operator R. L. Procise on charges of negligent operation of a Tr question, Claimant was operating the Tie Crane as part of a crew reneVing bridge ties under the supervision of Mr. A. C. Walker, Jr., Supervisor, B&B. After completing the work, Walker instructed Procise and his Helper, K. C. Jones, Jr. to load the Tie Crane onto a flat car using a Bantam Shield Truck Crane. Claimant inquired of Walker if there was available a double-line snatch block to make the lift but was told none was avilable at the site. Jones attached the cable of the Truck Crane to a 4-way chain using an undersized clevis which was too small to fit over the ring of the chain. The attachment therefore was jerry-rig the 4-way chain ring and bolting the clevis around the loop in the cable. This arrangement was observed directly by Supervisor Walker who did not object to the method of rigging. Jones thereupon attached the chain to the Tie Crane, gave Procise in the Truck Crane the signal to lift and he did so lifting the Tie Crane about two feet, but then lowering it again to adjust the brakes on the Truck Crane. Upon lifting the Tie Crane the second time, the cable parted and dropped the Tie Crane to the ground thereby damaging it. Walker, Jones and Procise determined that cable strain due to the method of rigging was the cause of the accident. Another clevis of the proper size was then found, the 4-way chain was rigged properly through that clevis and the lift was made to the flat car without further incident.

 Thereafter, by letter dated May 10, 1974, Claimant was suspended for 15 days without pay by Division Engineer E. H. Wilkinson. Under Rule 32 of the Agreement, the Organization requested an investigation. Following


adjournment the hearing was held on June 6, 1974 with Division Engineer Wilkinson serving as Hearing Officer. On June 18, 1974 the Hearing Officer issued his decision as follows:

        "Reference previous correspondence, and attaching copy of investigation held June 6, 1974, concerning the above subject.


        Facts developed in the investigation indicate that Machine Operator R. L. Procise knew correct procedure for handling loads of the kind in question but still violated correct procedure; resulting in extensive damage to Tie Crane NW 10050. 1 can see no reason to change or modify discipline as has been assessed."


By letter dated June 26, 1974 the instant claim was filed and, failing resolution on the property has been appealed to this Division.

 The position of the Organization herein is twofold to wit: 1) That Claimant was deprived of fair and impartial handling of thisi~s matbpr because Division Engineer Wilkinson preferred the charges, held the hearing and rendered the decision and 2) Claimant was not guilty of negligence because his Supervisor was pr manner of rigging and lifting, and interposed no objection to the procedure used. Carrier rejects both these positions on grounds, respectively, that the Agreement expressly states nothing about conduct of the hearing and that the negligence. of the Supervisor, if any, is irrelevant to the fact of Claimant's culpability.

 We have reviewed the hearing record carefully and can find no overt evidence of prejudgment or prejudicial conduct by the hearing officer. In these. circumstances and in the absence of agreement language on the subject, we cannot find that per se deprivation of a fair and impartial investigation. Our holding is not a general endorsement of'such hearing practices, but the Organization has not carried its burden of proving that the Agreement was violated thereby in this case.

 Turning to the claim of insufficient justification for the 15-day suspension, we are persuaded that the Organizations position has merit. The Carrier plainly placed the entire responsibility for the accident upon Claimant's shoulders and eith fault and bears partial responsibility for the accident. He is not relieved of all responsibility because of the negligence of others. Accordingly some
              Award Number 21285 Page 3

              Docket Number MW-21303


discipline was warranted. But a basic tenet of arbitral review in such cases is that discipline be uniformly and reasonably applied in all of the circumstances. There is no evidence to suggest that Carrier considered the mitigating circumstance of Walker's direct order to load the Tie Crane without a snatch block and the Supervisor's participation in and implicit approval and authorization of the method of rigging used by Claimant's helper. In fact, Carrier refused to consider such evidence at all. We must conclude that a 15-day suspension on these facts is arbitrarily axed unreasonably harsh. Thus, we shall reduce the discipline imposed to a suspension of five (5) days without pay. Accordingly, the claim is sustained to the extent that Carr a five-day suspension and shall compensate him for ten days wage loss suffered, less outside earnings if any.

        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 violated.


                    A W A R D


        Claim sustained to the extent indicated in the Opinion.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division

ATTEST: 49AW, ea4aQ~
        Executive Secretary


Dated at Chicago, Illinois, this 12th day of November 1976.