This Division of the Adjustment Board has ju: isdiction over the dispute involved herein.
On December 26, 1995 the Claimant was advised to attend an Investigation to determine facts and place responsibility, if any, in connection with a vehicle accident which occurred at Riverton Yard on December 12, 1995 at 10:45 P.M. .-according to the charge letter the accident resulted in some $1,100.00 in damage to a company vehicle and the Claimant was assessed blame. After an Investigation was held at the Roadmaster's office in Glenwood Yard. Pennsylvania, the Claimant was advised that he had been found guilty of the charges levied against him. He was discharged. .according to the letter of discharge the supreme penalty was levied not only because of the seriousness of the accident, but also because it was the second one the Claimant had been involved with in 1995.
The discipline was appealed by the Organization on the property in the proper manner under Section 3 of the Railway Labor Act and the operant Agreement up to and including the highest Carrier Offcer designated to hear such. Absent settlement of the claim it was docketed before the Third Division for final adjudication.
The Claimant's Supervisor on December 12, 1995 was a Roadmaster who testified :it the Investigation. According to the Roadmaster, who inspected the truck after the accident, and whose testimony is corroborated by that of the Claimant himself. the stake truck which the Claimant was driving passed too close to a parked dump truck in the Carrier's Riverton Yard. The result was that the dump truck's mirror was hit by the truck the Claimant was driving. ,1s a result the mirror and door on the dump truck sustained considerable damage. According to the accident report filed by the Claimant:
According to testimony at the Investigation by the Driver of the dump truck, who was a Tunnel Mechanic, the following occurred:
According to the Tunnel Mechanic, it was his opinion that the Claimant had not been driving at a cautious speed which would have been ". . . slow enough to he able to look through libel rear view mirror Itol make sure that lhel could pass Imyl vehicle without catching the mirror . . . ."
.According to testimony by the relief Foreman the passenger side of the dump truck was shut and latched when the Claimant's truck struck its mirror and ". . . pulled it out of its socket land then] caught the edge of the door just a little bit and ,pulled it out like 3/4s of an inch . . . ." When asked during cross examination if he thought the Claimant was driving at a safe speed when the accident occurred, he answered ". . . apparently not. It don't think he was going at a safe speed ....
The Trackman who was sitting on the passenger side of the truck which the Claimant was driving when the accident occurred opined, in testimony, that the top of the truck causing the accident caught the top of the door. not the mirror. but he also admitted that he was sitting on the opposite side of the truck causing the accident when it occurred and the Board can but reasonably conclude was not in a good position to
Form 1 Award No. 32566have seen exactly what happened. According to this witness the truck was going very slow... "barely moving. . ." when the accident occurred.
In testimony at the Investigation the Claimant admitted that his truck struck the dump truck. although he thought he had enough room to get by it. He stated that he did not see whether he hit the door or the mirror of the dump truck. The Claimant opined that he was going ". . . at most 3 miles an hour . . . ." He also stated that the road on which he was driving was filled with pot holes. When asked who was to blame for the accident the Claimant stated that he couldn't really state who was to be blamed. He did add that this was just his opinion.
A review of the record before the Board warrants conclusion that the Claimant was responsible for the accident. As a result of either negligence or bad judgment the truck he was driving passed too close to another truck and caused some $1,100.00 worth of damage to another truck. On merits the Claimant is guilty as charged.
The only remaining issue before the Board is whether the discipline assessed by the Carrier was reasonable. Arbitral precedent in this industry dictates that a Claimant's past record is a factor to be considered when assessing the quantum of discipline (Second Division Awards 5790, 6632; Third Division Awards 21043, 22310. '-3508). The Carrier argued that the Claimant was deserving of dismissal because he had been assessed a 30 day suspension in February 1995 for negligence involving a motor vehicle and that this suspension had been upheld by Public Law Board No. 3561. kward 2029. The Board obviously cannot condone what appears indeed to be two instances of negligence by the Claimant in the same year in an industry where safety and attentiveness thereto is of primal importance. On the other hand, this must be weighed, as extenuating circumstance, against the fact that the Claimant is a long-term employee with IS years of service. Aside from the acts of negligence in 1995 the Claimant has a clean record and he has been, as far as the Board can determine from information provided to it. a good employee. Obviously, if the Claimant commits further acts of negligence in the future which would establish a bonafide pattern of such behavior the Carrier would be justified in taking extreme measures to protect its property, the Claimant's fellow employees, and the Claimant himself.
But in view of the full record before it at this time the Board does not believe that it would be unreasonable to permit the Claimant to prove his continued worth to his employer and the Board will so rule. The Claimant shall be reinstated to his old position Form 1 Award No. 32566
with the Carrier, with seniority unimpaired, but without pay for time held out of service since January 18, 1996.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.