(Brotherhood of Railroad Signalmea PARTIES TD DISP=:

STAM(EN'P OF CLAgt: "Claim of the General Committee of the Brotherhood of

Claim on behalf of J. H. Fox., Signal Foreman, suspended from service for thirty (30) days, due to an investigation held is Gainesville,, Georgia on May 9j, 1978s with a request that claimant be paid for the thirty (30) days he vas suspended and his record cleared." (Carrier file: SG-326)

 OPINION CF HOARD: On March 14, 1978, Claimant was assigned as the Signal
 Foreman of a five (5) member Signal Gang which vas engaged in replacing a crossing signal relay case at the at-grade crossing of State Highway 21 sad the Southern Main Line which is located near Pineville,, North Carolina* However, because the new signal case could mat be placed into service at that time ("polder linen hadn't been raised"), the Project Engineer. C. L. Davis, who vas present at the fob site, directed Claimant to make a temporary hook-up by canni door of the new signal. case and then tie it into the circuit with temporary wire. When this particular activity vas completed, the now circuits were tested and the crossing signal worked ("the crossing bells rang, and the crossing signal flashed."). Thereupon, the Project Engineer left the fob site, but before doing so, he directed Claimant to supervise the remaining final steps of the assignment. Said assignment vas completed at approximately 2:30 PM at which time Claimant and his work crew departed for another assignment is Drexel, North (h
The first train to came through the nearly repaired crossing vas Train No. 73 which did so at approximately 3:45 PM. According to the Train's Engineer., the crossing vas made without incident ("the crossing signals flashed and the bell rang"). At approximately 4:20 PM, a second train. Train No. 185· Second, also came through the eroasiag, but this time the crossing signal did not function properly ("the belle rang but the lights did not flash") and, as a result, the Train struck a tractor trailer which had failed to atop at the crossing. The tractor trailer is turn struck a second vehicle causing an ia,jury to one of the vehic
                      Docket Number SG-23077


An investigation of the accident was conducted by Carrier representatives who arrived at the sce and it was discovered that same of the wires which had dust been installed that afternoon by the Signal Crew "...had been crimped by the door (of the relay case), thereby exposing the wire which overheated and caused the relay

 contacts to barn out." In light of this discovery, the investigators "...concluded that the burned out relay contacts and the signal failure were directly attributable to the crimped wiring."

 Pursuant to the a8brestatad investigation, Claimant, who was the employs in charge of the Signal Gang, was charged with "failure to properly perform his duties" and a hearing as the matter was conducted on may 9a 1978. As 8 result of said hearing, Claimant was found guilty as charged and was assessed a thirty (30) day suspension fns failure "...to properly perform his duties as the employs in charge when he permitted the temporary signal airing to be installed in an unsafe manner which resulted is the signal system malfunction and thus the serious accident."

 Organization's position in this dispute is two-fold: (1) that Carrier prejudged Claimant's guilt prior to the conducting of the iavestigatory hearing; and (2) tha herein.

 Regarding the first of these two contentions, Organization maintains that the specific contents Notice ("...you are charged with failure to properly perform your duties as Signal Foreman on March 14, 1978 when you permitted the temporary signal control wires to be installed is an unsafe manner which resulted in a serious accident"), "...shoxs conclusively that (terrier decided before the iavesti lion that Claimant was guilty as charged" (Emphasis added by Organization . Organization alleges that because of this pre3udgement "...it was impossible for Claimant to receive a fair and impartial investigation" affil that "This r sustaining award."

 Turning to the second of its contentions, organization asserts that "...Carrier did not and could not support the instant charge with probative evidence" sad that Carrier, therefore, has failed to sustain its requisite burden of proof in this dispute (First Division Award No. 20834; Third Division Awards No. 9216, 1120, 18885 and 19515). In support af this position, Organization maintain the effectiveness of the blocking procedure which was utilized by the Signal

      knowledge incorrect"; the relay properly blocked/protected

direct ledge of pxotected
 by the Signal Gang, whereas Organization's witnesses did have such knowledge
 and so testified at the investigation herring.
                      Award Number 233+ Page 3

                      Docket Number SG-23077


As its final area of argumentation is this regard, Organization contends that insofar as the crooning signal flashers were walking properly when Train No. 73 Passed over the crossing approximately one hour and fifteen minutes after the Signal Grey had left the scene, this fact alone is proof that, the relay case was properly protected at the time of the Gang's departure. Given this particul that whatever might have canned the crossing signal to malfunction between the passing of Train No. 73 and Train No. 185-Second was not caused by any fault or negligence on the part of the Signal Gang and Claimant's suspension, therefore., was improp
Carrier's position in the dispute is equally as clear and direct as that which has been proffered by Organization. Simply stated, Carrier maintains that: (1) evidence adduced in the investigation proves (claimant's) guilt of failing to properly perform his duties on March 14, 1978; sad (2) the discipline which was imposed was fair and reasonable, and should not be disturbed.

 In support of its contention that Claimant failed to properly perforce his duties, Carrier maintains that, over cad above its conclusive shoving that the damaged wires is the relay case were the direct cause of the accident, which occurred on Ma establish that: (1) the crossing signal worked properly before Claimant directed the dosing of the relay case doors; (2) Carrier investigators found no evidence that Claimant and/or Signal Gang blocked the relay doors is accordance with normal procedures; and (3) Carrier's investigation of the scene immediately after the accident revealed that the manner in which Claimant alleges that "he blocked the dear would still have resulted in the wires being crimped."

 Regarding its second contention, (drier maintains that its actions is this matter have neither bean arbitrary nor capricious, and the Board therefore, must not disturb the discipline which has been imposed. (First Division Award go. 130061 Thud Division Awards No. 15828 and 20194). Moreover, Carrier also contends that, given the notions nature of Claimant's infraction, Carrier's imposition of severe discipline upon Claimant was justified; sad "...in light of the nature of the proven offense and its possible catastrophic conseq
The Board has carefully rued and studied the complete record is this dispute and is unable to find evidence, either in fact or is substance, which would justify the recision of the penalty which has been imposed upon Claimant by Carrier.
                      Award Number 233 Page 4

                      Docket Number SG-23077


From the outset, Organization's contention regarding Carrier's alleged prejudgment of Claimant's guilt is reverted as being without foundation. The totallity of Or phraseology utilized by Carrier is its March 21, 1978 Investigation Notice which, according to Organization, "...shows conclusively that Carrier decided before the investigation that Claimant was guilty as charged."

 While it is indeed true that prejudgment of an accused prior to the conducting of a fair sad impartial hearing, if graven, can be sufficient grounds for the setting aside of disciplinary action, it is equally true that the charge of "prejudgment" cannot merely be asserted,, but must be supported by same degree of substantive and creditable evidence. In the instant cssep no such evidence has been proffered, and that which has been alluded to by Organization is nothing more than a specific and precise statement which apprised Claimant of the matter which was to be inquired into at the investigation "...and was state of the offense and enable him to prepare his defense." Additionally, the specific words which Organization cites as the basis of its argument in this regard have been completely taken out of context by Organization and these words, by themselves, tend to obscure the true meaning sad intent of the Investigation Notice from which they were extrapolated. In such instances, rather they relying upon bits sad pieces of evidence and/or testimony, the actual conduct of the hearing itself is viewed as being a more appropriate index of the fairness and impartiality of the investigation, and, is this regard, the transcript of said hearing clearly indicates to this Board that the proper standards of conduct were followed and were met by Carrier as required under Rule 23 of the parties' Agreement. The basis for this particular rationale was articu Englestein in Third Division Award No. 13727 when he concluded:

        "In respect to the contention that the notice of investigation did not set forth the 'known circumstances' as required by Rule 21, we find that Carrier's letter of September 19, 1963, included such significant information as the date and place of the occurrence, the rules violated, and reference to Claimant's conduct necessitated his removal from service at Forgo. Claimant was, therefore, adequately apprised of the nature of the charges so that he could prepare his defense. Moreover, the hearing indicates that he was not taken b surprise when the char s were presented. Emphasis added by Hoard.

                      Award lYumber 23344 Page 5

                      Docket Humber SG-2307r


As to organization's second. major contention "...that (terrier has failed to meet its burden of proof and therefore forfeits its right to discipline.." the Hoard 18 as equally unpersuaded by this particular line of argumentation as was the case in the foregoing consideration. Suffice it to say that though the total blame for the Signal Gang's

 be attributed any one member of said crew (supervisory or otherwise)..
 and though it is impossible to determine with affil degree of absolute
 certainty the enact manner is which Claimant functioned in the per
 formance of said assignment, there is sufficient evidence available
 within the record to conclude that: (1) the accident of March 14, 1978
 occurred as a result of the crossing signal's failure to operate properly;
 (2) said failure, most likely, was caused by the improper/inadequate
 blocking procedure which was utilized by the Signal Gang in temporarily
 restoring the crossing signal relay case to service'; and (3) Claimant. -
 in the final analysis, was the employs who was accorded ultimate authority
 and responsibility for the proper performance of said assignment. Thus the
 Board concludes that under such circumstances, (terrier's imposition of dis-
 cipline herein was neither unreasonable, arbitrary nor capricious; Was a proper exercise of Carrier's managerial authority; and said determination, therefore, shall remain undisturbed. (Third Division Awards No. 9326s 11775 and 21047)·

 "The fact that the crossing signal worked properly when Train No, 73 came through the crossing does not indicate that the signal was properly protected at the time of the Signal Gang's departure since the record adequately demonstrates that the newly repaired circuit was adequate to "energize" the flashers for the first train's passing, bat "as the train continued to pass over the circuit, the current fluxing through the crimped wires created heat, end the heat cont4med to increase until it reached the level to burn oat (Carrier's Submission, p. 6; also see Hearing Transcript, pp. 21, 25 and 29·
                      Award Number 233 Page 6

                      Docket Number SG-230T(


FnWnVG3: The Third Division of the Adjustment Bird, after giving the
 parties to this dispute due notice of hearing thereon, ate.
 upon the whole recd and all the evidence, finds and holds:

 That the Carrier and the Employee involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved Juan 21, 1934;

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

        That the Agreement was not violated.


                      A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


        ATTEST: Executive Secretary


        Dated at Chicago, Illinois, this 30th day of July 1981.


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