NATIONAL RAIIRQAD ADJUSTMENT BOARD

Award Number 239

THIRD DIVISION Docket Number MW-23845

Carlton R. Sickles, Referee

(Brotherhood of Maintenance of Way Employee

PARTIES TO DISPUTE:

(Peoria and Pekin Union Railway Company

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

(1) The three day suspension imposed upon Machine Operator Gregor Herberger 'for his responsibility in connection with an injury sustained by Foremen David Vlasis' was without just and sufficient cause and on the basis of unproven charges (System File PPU-352/S-TC 25-80).

(2) Machine Operator Gregor Herberger shall be afforded the remedy prescribed in Rule 17(c)."

OPINION OF BOARD: Claimant received a three-day suspension for his responsibility
in connection with the injury sustained by his foreman
while he was moving a rail with a Burro Crane. The rail struck the foreman. The
issue is whether the Claimant was negligent in so doing. The transcript
establishes that the Claimant did not look in the direction of the foreman
immediately prior to moving the crane. The testimony goes into other facts
in connection therewith but for our purposes nothing therein overshadows the
clear basis for the discipline imposed by the Carrier.

In view of the nature of the accident, namely, one involving safety procedures, a subject to be emphasized at all times by all parties, and in view of the clear responsibility on the part of the Claimant and others similarly situated to insure that no one is in the path before making such a movement, a procedure designed to protect all persons in the area including the Claimant, we find that the Carrier has satisfied its burden of making its decision based upon adequate evidence.

A three-day suspension is clearly not excessive.

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 Employee involved in this dispute are respectively Carrier and Employee 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

Award Number 239 Page 2

Docket Number rbT-2381+5

That the Agreement was not violated.

A W A R D

Claim denied.

NATIONAL RAIIROAD ADJUSTMENT BOARD

By Order of Third Division

Attest: Acting Executive Secretary
National Railroad Adjustment Board

BY
Rosemarie Brasch - Administrative Assistant

Dated at Chicago, Illinois, this 8th day of June 1992.