"Claim of the System Committee of the Brotherhood that:

(l) The discipline (20 day overhead suspension) imposed upon Grinder J.D. Harris for alleged violation of General Rule A and Rule 30 of the Rules of the Maintenance of Way Department was unwarranted, on the basis of unproven charges and in violation of the Agreement (System File T-D-795-B/MWB 94-10-05AD).

(2) The discipline (20 day overhead suspension) imposed upon Welder Moen for alleged violation of General Rule A and Rule 30 of the Rules of the Maintenance of Way Department was unwarranted, on the basis of unproven charges and in violation of the Agreement (System File T-D-796-B/MWB 94-10-05AE).

(3) As a consequence of the violation referred to in Part (1) above,

Claimant J.D. Harris' record shall be cleared of all reference to the

twenty (20) day overhead suspension.

As a consequence of the violation referred to in Part (2) above, Claimant R. K. Moen's record shall be cleared of all reference to the twenty (20) day overhead suspension."

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.

Parties to said dispute were given due notice of hearing thereon.

The incident in this case involves the performance of welding work by the Claimants in Saunders Yard, a section of railroad where the movement of trains is controlled by signals and a control operator who regulates the train traffic through Saunders Yard.

On February 28, 1994, the Claimants were assigned to perform welding work on track frogs in Saunders Yard.

Claimant R IC Moen who was in charge of the welding work stated that he went to the Saunders Tower and requested permission to work on one of the yard frogs.

Claimant Moen stated that he was informed by Control Operator D.J. Lock that he should wait for the Hib-Tac train to pass and he then could have the track until 3:30 P.M. when the neat train would be due. The Claimants commenced work on the rail frog after the Hib-Tac train cleared the site where the welding work was to be performed.

At approximately 3:00 P.M., Train 831 approached Saunders Yard and the Control Operator alerted the train crew of Train 831 to the presence of the welding crew on the track at the Saunders Yard Plant. The Engineer responded, reduced his train speed and began to blow the train whistle.

Claimant Moen was acting as look out while Claimant J.D. Harris was grinding the frog. He became aware of approaching Train 831 when it was about a mile away. Claimant Moen stated that he assumed Train 831 would stop because of the permission he had received verbally from the Control Operator that they could work on the track until 3:30 P.M. Additionally, the Claimant stated that he assumed Train 831 would stop at the absolute signal governing Saunders Yard Plant.

Train 831 did not stop at the signal but proceeded at a reduced speed towards the work site.

The Control Operator being aware of the proceeding train left his tower and walked towards the Claimants to alert them that the train was proceeding.

The Control Operator arrived at the work site which was in close proximity to the Control Tower and alerted the Claimants to remove themselves and the grinder from the track which they did before the train reached the work site. No one was hurt or injured at the scene of the incident.

Following the incident on February 28, 199-1, the Claimants received a notice dated March 3, 1994 to attend an Investigation on March 14, 1994 to determine responsibility, if any, in connection with your alleged near miss with Train 831 on February 28, 1994, at approximately 14.45 at Saunders Yard. The Investigation was postponed at the request of the Organization and was subsequently held on April 11, 1994, in Superior, Wisconsin.

Following the Investigation on April 11, 1994, the Claimants received individual notices assessing the discipline which is at issue in this dispute.

During the Investigation and the subsequent handling of this dispute on the property, the Organization took the position that procedures and pre-judgment by the Carrier officers was prejudicial against the Claimants.

Our thorough review of the record and transcript of the Investigation can fwd no support for the Organization's position in this regard.

The Investigation was lengthy and numerous witnesses were called and permitted to testify. The Organization representative and the Claimants were permitted to question all those who were in attendance. We find nothing in the record that would support the position of the Organization of procedural defects prior to or during the Investigation.

With respect to the incident that occurred, the testimony of those involved appears to be reasonably consistent with respect to the factual situation that led to the so-called near miss.

The issue to be decided is whether the Claimants' actions violated General Rule A and Rule 30 of the Rules of the Maintenance of Way Agreement.

In this particular case, it is evident that the Control Operator may have, for whatever reason, overlooked the time that had been allotted to the Claimants for welding work; however, he was aware of their presence on the track as he alerted the Engineer of Train 831 and left the control tower to alert the Claimants of the approaching train. The Claimants were aware of the approaching train, but assumed that it would stop at the absolute signal at the approach to Saunders Yard which was under control of the Control Operator.

While this incident was described as a near miss and fortunately no one was injured, the responsibility for the incident or near miss cannot be placed on la=ity, improper or careless action by the Claimants.

The Investigation transcript clearly reveals testimony by other employees with many years of experience on the railroad that practices followed by the Claimants at Saunders Yard have been consistent through the years.

In this incident, the record clearly reveals an oversight on the part of the Control Operator who is responsible for the movement of trains through Saunders Yard Plant and was responsible for the protection of the Claimants performing the work on the Saunders Yard Plant. The transcript reveals that subsequent to the incident, the Carrier officials revised rule procedures and the Control Operator changed his method of operation to protect against further instances of what transpired in this dispute.

Accordingly, while we recognize the serious nature of the incident, we cannot find any basis for holding the Claimants responsible for the events that led to the near miss and accordingly no basis for the charge of violation of General Rule A and Rule 30 of the Rules of the Maintenance of Way Department.

97-3-95-3-619