PARTIES TO DISPUTE.

STATEMENT OF CLAIM: "Claim of the General Committee of the Brotherhood of
 Railroad signalmen on the Kansas City Terminal Railway Company:

 On behalf of Signal Maintainer W. N. Secrest and Assistant Signalman P. J. Samson, suspended from service for ten (10) days, due to atf investigation held is Kansas City, Missouri on May 24, 1979, with a request that claimants be compensated for all fringe benefits and time lost for a period of ten days and their personal record cleared of any reference to this matter."

OPINION OF BOARD: Ups: reporting for duty on date of May 14, 1979, Claimants,
 W. N. Secrest, Signalmnn-Maintainer and P. J. Samson, Assistant Signalman, along with a third employe, K. E. Bradrick, a SignalmanMaintaiaer were assigned approximately 7:40 A.M., while the three named employee were is the process of dismantling the switch, a Burro crane shoving a dump car struck both Bradrick, who sustained severe injuries and Secrest, who sustained minor injuries. Claimant Samson escaped injury altogether.

 By notice dated May 17, 1979, both Claimants along with Bradrick and the three (3) employee operating the Burro crane were each ordered to report on May 24, 1979 for a formal investigation to "determine cause, develop facts and place your particular responsibility, if any, for the accident that occurred at Penn Avenue Interlocking Plant is vicinity of Switch No. 45 on Track No. 7, at about 7:40 A.M., on Monday, May 14, 1979, when Burro Crane TIC501, with air dump car KCT%5060, struck sad inured three employee of the Kansas City Terminal Railway Company". As a result of the evidence adduced at the investigation, Claimants were adjudged guilty of having violated Rules L, M, and U, of the Kansas City Terminal Railway Rules and Regulations and Safety Rule 159 and accordingly were suspended for a period of ten (10) working days. Rules L, M, and U read as follows:



        "Property of the railroad, including freight and articles of value found in or on cars, or on the right-of-way, must be cared for and properly reported, and not in any way disposed of, or removed from Company premises or rightof-way without first securing proper authority


        "M. Safety is of first importance in the discharge of duty. Obedience to the rules is essential to safety. To enter or remain in the service is an assurance of willingness to obey the rules."


        "U. Employees must exercise care to avoid injury to themselves or others. They must observe the condition of equipment and the tools which they use in performing their duties and when found defective will, if practicable, put them in safe condition, reporting defects to the proper authority.


        They must inform themselves as to the location of structures or obstructions where clearances are close.


        They must expect the movement of trains, engines or cars at any time, on any track, in either direction.


        They moat not stand on the track in front of an approaching engine car for the purpose of boarding the same.


        Employees must not ride or walk on the roof of any moving car.


        In every case of accident a full and complete report must be made at once by every employee present, no matter whether he considers his statement of importance x not.


        Employes must report all personal injuries, regardless of how slight, to the proper supervisory officer before leaving the Company's premises, stating time, place and cause thereof, furnishing forms and statements as soon as possible. Even slight injuries should receive immediate attention to prevent infection."


And Safety Rule 159, reads as follows:

        "159. Employees are prohibited from sitting on rails, ties or any other part of track structure, except when necessary in performance of duty, and then only when sufficiently protected to insure their safety."


The Organization argues the investigation, subsequent findings by Carriers, and the discipline imposed on the Claimants, should be overturned on the procedural ground Carrier failed to be precise in its charges against Claimants by not citing the particular rules and regulations allegedly
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                    Docket Number SG-23335


violated. The Organization contends that as a result of Carrier's imprecise statement of charges, Claimants' rights to a fair and impartial hearing were seriously compromised. Moreover, the Organization submits that by not bringing precise charges against the Claimants, Carrier is in violation of Rule 701(c) of the controlling Agreement bearing effective date of September 16, 1968, which reads in relevant part thusly, "The Employee alleged to be at fault shall be apprised in writing of the precise charge or charges..." As further support of its position the Organization cites Third Division Award 20560, contending said case is parallel to the case at bar, wherein the Board held that: "fundamental fairness requires that this Board study the rule or rules under which Claimant was disciplined as well as the evidentiary record in order to fudge whether the evidence conforms to and relates to the violation of the specific rules. This Board is left to speculate ... and this we cannot do." The Organization posits that as in this preceding case, the Board again is left to speculate.

 With regard to the merits, the Organization asserts Claimants were not perpetrators of a rules violation but victims thereof. In support of its position on this point the Organization asserts the crew operating the Burro crane had the responsibility pursuant to Rules 14(b) and 14(1) of the Kansas City Railway Rules and Regulations to sound a whistle signal at the time the crane began to move. The Organization notes no whistle signal was sounded and therefore the Claimants were given no forewarning as to the movement over the track. The Organization presumes that had the crane's horn been operated as prescribed by Carrier Rule 14, there should be no doubt that it would have been heard by the Claimants in which case Claimants would have reacted appropriately by taking evasive action.

 With regard to the specific Rules violations Claimants are charged with, the Organization takes the following positions: (1) as to Rule L, the organization submits that Carrier's findings of culpability for this violation is based not on any facts presented, but on the presumption that Claimants were careless of their safety. The Organization argues that the occurrences of an accident does not of itself prove that the victims, in this case the Claimants, were negligent; (2) as to Rule M, the organization submits that nowhere in the record evidence has Carrier shown that Claimants ever expressed an unwillingness to obey any of its rules including those on safety; (3) as to Rule U, the Organization contends Claimants did exercise every caution to avoid injury while in the course of performing their assigned duties; and (4) relative to Rule 159, the Organization asserts this charge lacks total foundation as no evidence or testimony was produced by Carrier to indicate either of the Claimants were "... sitting on rails, ties or any other part of track structure ..." Rather, the Organization maintains the positions assumed by the Claimants were necessary to the performance of their duties. Ea sum, the Organization declares the Carrier's finding of guilt on the part of the Claimants is not supported by the evidence of record and therefore a sustaining award is justified.

 In defense of its position Carrier argues the notice of charge was, in fact, sufficiently precise and satisfied all requirements of the Agreement. This is so, states Carrier, as claimants were put on notice as to the specific incident under investigation including the date, place and other details of
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the subject accident. As to the Organization's position the charge was imprecise because it failed to specify violations of particular rules, Carrier cites Award No. 5 of Public Law Board 1267, as a refutation of such position, wherein the Board held:

        "The fact that no specific rule violations were mentioned in the Notice does not render it invalid for, as a matter of substance. Carrier's right to impose discipline, is the event of certain conduct, , is beyond the realm of debate."


In further support, Carrier notes in relevant part Third Division Award 17998, wherein the Board stated:

        "A notice is sufficient if it meets the traditional criteria of reasonably apprising an employee of what set of facts or circumstances are under inquiry so that he will not be surprised and can prepare a defense. A careful review of this record XXX does not disclose that the Claimant's substantive rights were violated by reason of the notice he received not containing a direct charge that he violated a specific rule. )HER"


The Carrier takes the position that notwithstanding its affirmative defense on this procedural objection, said objection should be dismissed as it was not timely raised by the Organization.

 As to the merits, Carrier asserts evidence adduced at the investigation clearly reflects Claimants were very much aware they were working on a track that was in service at the time and that traffic could move over that track at any time in any direction. Carrier submits based on the Claimants' own testimony that they were in complete disregard of the Agreement Rules and safety precautions while engaged in the performance of their assigned duties of repairing the switch. Carrier charges Claimants were careless as to their own safety and the safety of others and concludes this carelessness contributed to the subject accident.

 In our review of the satire record and close scrutiny of the relevant evidence, we find the procedural objection raised by the Organization to be without foundation. We are persuaded by an examination and reading of the notice of charges that it was specific enough in apprising Claimants of the matter under investigation, to wit the accident they were involved in on May 14, 1979, and sufficient enough to allow them to prepare an adequate defense. In so finding, the issue as to whether the Organization timely raised this objection becomes moot.

 On the merits of the case at bar, it is our determination based on Claimants' own testimony they were aware Track No. 7 was in service at the

 time they were repairing the signal, that they were careless of their own safety and the safety of others, and thereby guilty of the rules infractions, cited above. Accordingly, we find we must deny the instant claim.
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FINDINGS: The Third Division of the Adjustment Board, upon the whole record
        and ell 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.


                      A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
        National Railroad Adjustment Board


BY
        Rosemarie Brasch - Administrative Assistant

                                    an


Dated at Chicago, Illinois, this 13th day of May, 1982.