(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: ( (Seaboard Coast Line Railroad Company

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

 (1) The five (5) days of suspension imposed upon Section Foreman Joe Frazier, Jr. for alleged violation of Rules 'lit', '6', '29' and '502' was capricious, arbitraryp unwarranted and on the basis of unproven and disproven charges (System File C-x+(13)-JF/12-39(80-68) G).

 (2) The claimant's record shall be cleared and he shall be compensated for all wage loss suffered."

 OPINION OF BOARD: Claimant, J. Pmzier., is a regularly assigned Section Foreman
 at Bennett Yard. On June 2, 1980, in the course of his
 assigned duties, he drove the section truck to the work area and parked it adjacent
 to an active track. During the course of the day, the passenger door of the truck
 was left open. A gondola car, kicked into the track by a switch engine, struck
 the open door of the truck! Charges of violating safety rules were brought
 against a Trackman who left the door on the truck open and Claimant for his
 responsibility in the matter.

          A hearing was held in the matter. Both Claimant and the Trackman

were found to have violated numerous safety rules. Both were assessed
 a five-day suspension. Claimant contends that he was not responsible for the truck door being left open. Therefore he should not be disciplined as severely as the Trackman who actually left the door open, fouling the track.

 This Board has reviewed the record of this case and has concluded that Carrier has been arbitrary in assessing Claimant and the Trackman the same level of discipline for their respective involvement in the accident., Testimony revealed that Claimant, as well as other people, parked trucks at the ',,ocation where the accident occurred for many years. As long as there were no accidents, it appears that Carrier condoned this practice. Claimant cannot be held responsible for the door being left open on the truck. He cannot watch every move his men make at all times. It is reasonable to conclude that everyone who works around the railroad is aware of moving trains and the damage they can do if they hit objects on or near the track.

          The Trackman left the door on the truck open. He was the major


i
 contributor to the accident and he should, by all standards of even-handedness, bear the brunt of the blame. Consequently, he should suffer the more severe discipline if Carrier chooses to discipline both him and the Foreman. It is this Board's opinion that Carrier could have made its point with Claimant by issuing a stern warning, together with a two-day suspension without pay.
                      Award Number 24396 page 2

                      Docket Number MW-21$1


FINDINGS: The Third Division of the Adjustm=nt 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 Jane 21, 1934;

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

        That the discipline was excessive.


                        A W A R D


        Claim sustained in accordance with the Opinion.


                            NATIONAL RAILROAD A DJUSTMEN BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
        National Railroad Adjustment Board


By
        Rosemarie Brasch - Administrative Assistant


Dated at Chicago, Illinois, this 26th day of May 1983.