PARTIES TO DISPUTE:

STATEMENT OF CIAtti: "Claim of the System Committee of the Brotherhood that:

 (1) The discipline assessed Foreman J. L. Pigg for his alleged 'responsibility for the damage incurred to Truck 296' was without dust and sufficient cause and on the basis of unproven charges.

 (2) Foreman J. L. Pigg's record shall be cleared of the charge leveled against him."

 OPINION OF BOARD: The Claimant was assessed ten days' suspension without
 pay, which assessment was suspended placing the Claimant on probation for sin months. This sentence was awarded at the hearing which established that the Claimant was at the wheel of a truck backing up a hill when the rear axle broke.

 The Claimant was track foreman of a gang dispatched to repair track. When the task was completed, the driver of the truck which was subsequently damaged, was instructed by the Claimant that rather than backing up to the service road utilized in arriving at the location, he should drive down to the road leading ultimately out of the area. When they arrived at the lower road, it was found to be cut off sad it was necessary to back up to the initial area and turn is to the service road. The driver was unable to back the truck up as it kept stalling. The Claimant then attempted to back the truck up and in the process, the axle broke. '

 After hearing, the Carrier found the Claimant responsible for the damage and imposed the penalty referred to above.

 There.is no question but that the damage to the vehicle occurred while the Claimant was driving the truck. There is also no question but that the truck was damaged while it was being backed out of an area where the events show it should not have entered.

 The issue then before this Board is to determine not only that the damage was caused by the Claimant, but whether it was caused through negligence of the Claimant for which he should be held responsible.

 It was obvious in hindsight that it wasn't very clever to move down into the area where he instructed the driver to go. Who is to say, however, that it was poor judgment when to travel this route the truck would be going downhill to the road rather than being backed up to another road? We have great difficulty in determining that the Claimant used poor judgment at the


time that he made the decision to instruct the driver to proceed forward even though it may show upon reflection that it was not a wise thing to do.

 We have examined the record thoroughly and, in particular, the transcript of the hearing and cannot find any basis for a showing that the Claimant acted negligently is this matter. We are usually reluctant to overturn a decision where there is some factual basis which, if believed by the Carrier, would support the punishment imposed. However, in this instance there appears to be no factual basis to hold that the Claimant was negligent ia'his actin. We do not believe that the concept of poor judgment can be relied upon in this instance given the circumstances including the location sad the time of day that the incident occurred. To hold otherwise would, in this case, make the Claimant the absolute guarantor that nothing material would happen to the equipment in his charge. Poor judgment is this instance is not the equivalent of negligence.

 It is noted that the punishment was minimal. It served the purpose of informing the Claimant that the Carrier took the matter seriously noting that he and others similarly situated should be very careful with the equipment of the Carrier; however, that point having bees made, we do not believe that it is necessary to keep the punishment on the record of the Claimant and we, therefore, will grant the claim.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds sad holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved is this dispute are respectively Carrier and Employee within the meaning of the Railway Labor Act, as approved June 21, 193;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
                                              RE C E i ~~:.~.

        That the Agreement was violated.


                        M11 2 ~ ~~ _

                        A W A R D

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                                              c°9o pffice - d~\


        Claim sustained. °-u~=


    NATIONAL RA IIROADkDJUSTMENT BOARD By Order of Third Division Attest: Acting Executive Secretary

          tirnal Railroad Ad ustment Board


BY
 Rosemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 8th day of June 1982·