Form l
NATIONAL L ADJUSTMENT




                                          -3-®3- 1


The Third Division consisted of the regular r members and in addition Referee
 ....Peter R. Meyers when award was rendered.,

    (Brotherhood of Railroad ignal en TIE T DISPUTE:

                  (Canadian n Nation al/111inois Central Railroad


STATEMENT CL
"Claim n behalf of the General Committee the Brotherhood of ailroad Signal en on the Illinois Central Railroad (IC):

 Claim n behalf of . Q. Alexander, forpayment all lost time a
 benefits, with all reference to the discipline iposed in connection
 with an investigation conducted on arch , 2001, removed from
 his personal record, account Carrier violate the current
 Signal en's Agreement, particularly Rule , n it faile o
 provide the Claimant it fair a impartial investigation
 and imposed harsh and excssive discipline without meeting the burden orvin the charges against the Claimant. Carrier's File . I - 15-01- . General Chairman's File . IC-004-01. S File Case
 o.17-IC."

 I

 The Third ivisif e Adjustment Board, upon the whole ecll the evidence, finds tat:

 The carrier r carriers an the employee r employees involve in this dispute e respectively carrier and employee within the meaning of the Railway Labor Act, prove June 21,1 .
 For 1 war .7
 Page 2 t o. 7
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 This Division of the Adjustment oar has jurisdiction yr the dispute
 involved herein.

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


n February 7, 2001, the Claimant as notie to attend or l
 Investigation to "ascertain the facts and/or determine your responsibility, if any, for
 your allege failure to properly operate and/r maintain control f company vehicle
 which resulted in a collision with another vehicle t 7th Street iee e, L., n
 ony February 1, 2001, t approximately 6:30 . ." After a postponement,
 the Investigation was conduced on arch 29, 2001. s a result of the Investigation,
 the Claimant was found guilty of the charge, an y letter ate April , 2 1, t
 Carrier notified the Claimant that he was being issued - y suspension. T
 rganization fled claim on the Claimant's behalf, challenging the Carrier's
 decision to suspend the Claimant. The Carrier denied the claim.

 The Carrier initially contends tat there is no substantial evidence to support
 the Organization's assertions that the Claimant s not guil that t
 Investigation as flawed. The Carrier argues that the Organization apparently
 believes tat the only fair and impartial Hearings are those here n discipline is
 imposed. The Carrier maintains th this is standard argument foundation in fact and no evidence to sort it.

 s for the Organization's specific assertions, the Carrier contends that not
 statin specific Rule violations in the once of Investigation es not constitute pre
 judgment f employee; iste, it protects the lee fro prejudice. The
 Carrier emphasizes tat the once Investigation in is case et t the Board's
 criteria, a the Claimant s clearly advise the issues at h. Carrier
 ten asserts tat the Organization's allegation tat the tie f Investigation s
 not timely delivered simply is not true. The Carrier points ut that it ca
 f the offense n February 1, and the notice as date Febru 22. The Carrier
 intai that although the Claimant may ve notified is supervisor f is change
 address, the Claimant i not notify the Division Office. The Carrier
 contends, however, t e Claimant nevertheless - elivee Notice f
 Postponement, so t Claimant clearly as aware f Investigation. a Carrier
 further asserts tat a Organization coul have requested postponement it
 For 1 Award .3724
 e 3 Docket . -37274
 4-3- 2-3-215

 Claimant as not preared to continue, but the Organization agreed troceed
 with the Hearing as scheduled. The Carrier therefore argues the
 rganization's protest has no merit.

The Carrier then argues that the evidence supports the finding that the Claimant is guilty as charged. The Carrier maintains that the Claimant did o

refute the fact that he failed to copletely stop at the crossing, and that he i not see the motor vehicle he struck until the last second. The testimony fro the Claimant and other witnesses demonstrates that the Claimant dim not have proper control of the hi-rail vehicle. The Carrier contends that it does not employ people to overlook important details while working. The Carrier asserts that only a Hearing fficer may determine which story to believe, and the Hearing, Officer in this case determine that the testimony of the other witnesses was more credible than that of the Claimant. The Carrier contends that the oar does not have the authority to substitute its judgment for that f the Hearing Officer.


The Carrier also argues that it is not relevant that the driver of a for vehicle received a ticket; this does not prove that the Claimant is innocent. The Claimant is bound by the ides of a railroad, and he admitted that i not make complete stop at the crossing. This admission establishes that the Claimant violate the Carrier's Rules.


The Carrier additionally contends that failure t perform one's duties int
 acceptable. T Carrier is obligate o impose discipline in cases here Rules are
 violate and e process is maintained. T Carrier emphasizes that the
 Investigation was fair and impartial, the Rules ere in fact violated, and the
 discipline as appropriate. Under the circumstances, t oar should of
 interfere with the discipline. T Carrier asserts tat ere is s no evidence that the
 discipline as excessive r arbitrary.

e Carrier ultimately contends tat the instt claim soul e denied its entirety.


T Organization initially contends tat the Carrier violated parties'
 Agreement, particularly 1, when it faile t prov t cares against e
 Claimant, yet imposed t e us a si t issue. Organization asserts tat the
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 Page Docket o. -37 7
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Carrier's failure to comply with the procedural requirements nullified the April 27,

2001 Investigation an voided the Carrier's right to take disciplinary action against

the Claimant in this matter. The Organization asserts that the Carrier failed to

provide the Claimant with proper notice of the Investigation, and the Carrier id

not dispute this contention. The ensuing proceeding therefore was fatally flawed

from the outset. Because, the Carrier did not conduct the Investigation in

accordance with Rule , it had no right to impose discipline in this matter. the

oar has found, failure to issue timely notice nullifies any subsequent proceeding.


The Organization argues that the Carrier failed to meet its burden n of proving
 the charges through substantive evidence, but instead based its findings n
 speculation an conJjecture. The Organization contes that it a absence f proof
 that the Claimant s operating the vehicle in an unsafe manner, it was arbitrary
 and capricious for the Carrier to isci line the Claimant n this care. The
 rganization emphasizes that the Claimant's testimony makes clear that the driver
 the other vehicle turned i front of tClai ant after he already had starte
 through the crossing; the Claimant was unable to stop his vehicle before the
 collision. The Organization points out that after they investigate the accident, the
 olice issue ticket to the other driver for causing the accident y failin to yield.

 The Organization asserts that the crux of this dispute s ether the Carrier
 rove that the Claimant s responsible for the accident as result f faili
 erate his on-track vehicle t a safe speed. The Carrier faile teet the burden
 rovin this charge, n it violatet a Claimant's right t fair a impartial
 Investigation when it concluded that was responsible for the collision and
 isciplined him. The Organization emphasizes that under the Carrier's Operating
 Rules, it e l tat operator is driving vehicle t n unsafe see n
 en the river is unable to stiti one-half the range of the river's vii
 the track. The Organization contends that had the other car not darted
 across a crossing, akin an accident t unavoidable, the Claimant clearly could
 have stopped within e requirements f the Rule. T Organization maintains t
 ere is evidence tat the Claimant was traveli too fast t stop within t
 distance. Based the Carrier's o Investigation, there as o basis for t
 arrier t determine the Claimant violate the Rules or as responsible for the
 accident.
 For 1 and .72
 e Docket o. -37274
 0-3-2-3-215

 The Organization argues that the fact that two vehicles collide does not rove that the Claimant was responsible for the accident. The Organization., aintains that the Carrier's finding that the Claimant was guil on the simple basis that the Claimant was involved in an accident demonstrates the complete lack of evidence to su port the Carrier's charges. The Carrier based its decision strictly n presumptions and conjecture, not substantive evidence of wrongdoing y the Claimant. The Organization emphasizes that the Carrier admittedly base the Claimant's discipline on the mere fact tat an accident occurred. The Organization asserts that the disciplinary action against the Claimant cannot a allowe to stand, however, because an employee cannot be disciplined simply for bein involved i n accident. The Organization contends that the record shows that the other river cause the actions, and the Carrier's decision to suspend the Claimant the basis f a charge that was disproved is arbitrary, capricious, and a violation f e Claimant's rights under Rule .

 The Organization goes on to cnten that the penal imposed against the
 Claimant makes it evident that the Carrier's sole intent as punishe Claimant,
 of guide him in the performance f is work. It is abuse f the Carrier's
 iscretio in disciplinary atteren discipline is imposed t punish the
 employee a not to crrecor guide an employee's conduct. a Carrier as
 its managerial authority it the arbitrary decision o discipline t Claimant,
 despite the fact tat t Carrier a estlise that there ere o infractions.

 T Organization ultimately contends that the instant claim should e ustaine in its entirety.

 The Board reviewed procedural arguments rise the Organization,
 and we find them to be without merit.

 Board reviewed the evidence and testimony t is case, and we flnd t
 there is sufficient evidence in the recor to support the finding that the Claimant
 as guilty violating Carrier Safe ety Rules when he was involved in a collision on
 February 1 , 21, i is hit a r vehicle tat as crossi tracks. T
 Claimant i not deny tat i not completely stop the crossing i
 see the e motor vehicle that he struck until the last second. It is clear from the record
 and t testimony parties t t Claimant did not have rire control
 Form I Award No. 37244
 age Docket o. 3727
 4-3-0 -3-2

 over his hi-rail vehicle. Consequently, it s not improper for the Carrier to find
 him somewhat responsible for the accident that took k place.

 Once the oar has determined tat there is sufcient evidence in the recor o support the guil Ending, a next turn our attention t the type of discipline imosed. The Board will not set aside Carrier's imposition of discipline unless e find its actions to have been unreasonable, arbitrary, r capricious.

 In this case, the Claimant was issue 2-day suspension,, Tat 0- ay suspension triggered five-day deferre suspension from a prior incident in which the Claimant was also involved in accient.

 Given the previous history of the Claimant and the seriousness of this the oar cannot find that the Carrier acted unreasonably, arbitrarily, or
 capriciously hen it issued the 20-day suspension to the Claimant for this secon
 similar infraction. Therefore, the clai will l be denied.

                        A


      Claim denied.


                        ORDER


This r, r consideration f the dispute inie above, ere orders,
 t a Award favltt li ants) t be e made..

                      NATIONAL RAILROAD ADJUSTMENT BOARD

                      By Order of Third Division


ate t Chicago, Illinois, this 27th of October