Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26952
 THIRD DIVISION Docket No. CL-26626
 88-3-85-3-616
 The Third Division consisted of the regular members and in
 addition Referee Gil Vernon when award was rendered.
 (Brotherhood of Railway, Airline and Steamship Clerks,
 ( Freight Handlers, Express and Station Employes
 PARTIES TO DISPUTE:
 (Chicago Union Station Company

1. Carrier violated the effective Clerks' Agreement when, following an investigation held.on January 7, 1985, it suspended Relief Parcel Agent - Tractor Operator Donald Walker from service for ten (10) working days without just cause;

 2. Carrier shall now compensate Mr. Walker for all time lost as a result of this suspension from service and shall clear his record of the charges placed against him."

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

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

On December 28, 1984, the Carrier directed the following notice to the Claimant:
Form 1 Page 2

 Award No. 26952
 Docket No. CL-26626
 88-3-85-3-616





At this investigation you may if you so desire, be accompanied by a duly accredited representative of BRAC/Clerks Organization, without expense to the Station Company.

 You may produce witnesses in your own behalf, without expense to the Station Company, and you or your representative may cross-examine witnesses. You will be expected to be present throughout the entire investigation.

 It is your responsibility to arrange for BRAC/ Clerks representation and/or any witnesses you may desire to be present at this formal investigation."

 Subsequent to the investigation, the Claimant was assessed the discipline now on appeal before the Board.

 At the outset, the Board must reject the Organization's contention that the Claimant did not receive a fair and impartial hearing. While there is no doubt that the record is replete with leading questions, we note only one objection was registered on this basis and that was well into the hearing. Thus, it is difficult to invalidate the entire hearing on procedural grounds on the basis of such a limited protest.

 With respect to the merits we cannot conclude that substantial evidence exists in the record to evidence other than the fact an accident occurred to show that the Claimant was careless, failed to follow proper procedures or failed by his own design to keep a safe distance from the edge of Track H22. The fact that an accident occurs does not necessarily establish that the Claimant caused or contributed to it in any meaningful way.
 Form 1 Award No. 26952
 Page 3 Docket No. CL-26626
 88-3-85-3-616

 Rather than showing that the Claimant was the cause of the accident, the evidence shows that defective equipment and lack of other safety installations were the culprits baggage truck down an incline adjacent to Track X22 when the coupling hook between the truck and tractor became disengaged, thereby causing the baggage truck to roll down hill free. The Claimant also stated that he put his tractor in reverse and stoppe runaway truck loaded with baggage. Evidently this is not an infrequent occurrence. Claimant walked b Day to assist him in re-coupling the baggage car. As he attempted to pull the load away, his tractor bucked or reared and the impact of the front end coming down forced the rear wheel off the platform which has no guard rail.

 This testimony did not stand alone. Fred Day, also an employee in the area, stated he assisted the Claimant in reconnecting the disconnected load. He did not see the tractor jump. But he did hear it. He also stated it is necessary to drive "kind of close to the edge" because the baggage trucks often become unhooked and by being close to the edge you can stop--as the Claimant did--the load from running away down the ramp.

 Even more telling is the testimony of the Claimant's Supervisor. When asked if it was possible that the tractor "jumped" he stated flatly "it's been happening." When asked if it was a common occurrence he said "well we've been having quite a few of them jump." He also stated:

The only evidence to counter this was (1) a mechanical inspection after the incident which showed no abnormalities and (2) questions concerning the direction he was going when he accelerated.

 Regarding the mechanical inspection, we note the following unrebutted testimony of the Claimant:





Form 1 Award No. 26952
 Page 4 Docket No. CL-26626
 88-3-85-3-616





In view of this testimony, the testimony of Mr. Day and the Supervisor, the inspection can't be viewed as conclusive or probative.

 Regarding the direction of the Claimant's travel, this evidence is insufficient to overcome all the evidence which strongly suggests that the Claimant was doing his best to remedy a bad situation. He got his tractor in an awkward position in the first place because a wagon--as sometimes they do--became unhooked and he was attempting to stop it from rolling away uncontrolled. After this the tractor jumped violently making it believable that it was this force which caused it to fall over the edge of the unprotected ramp.






                          By Order of Third Division


Attest: _
        Nancy er - Executive Secretary


Dated at Chicago, Illinois, this 30th day of March 1988.