Form 1 NATIONAL O ADJUSTMENT



                                        Docket o. -36919

                                        0-3-01-3-541


The Third Division consisted of the regular embers and in addition Referee Steven . ierihen award was rendered.

 (Brotherhood of Maintenance of Way Emloyes
 PARTIES TO ISPUTE:
 (The Burlington Northern and Santa Fe Railway Company
 (jformer Burlington Northern Railroad Company)

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


      (1) The discipline [Level S - ninety (90) day suspension beginning

      August 12 through November 9, 2000 and a three (3) year

      probationary period] imposed upon r. S. I3ertoli for alleged

      violation of Maintenance of y Operating Rule 6.50.1 and

      aintenance of ay Safety Rule -14.1.2 in connection with

      operating a y-rail involved in rollover incident on ay l ,

      2000 near Mile Post 155.5 on the Helena Suivision was

      unwarranted, excessive and in violation f the Agreement (System

      File - - 02pF/11-00®05 N)®


          (2) s a consequence of the violation referred to in Part (1) above, any mention of this investigation and subsequent discipline shall be stricken from r. S. ertoli's personal record, he shall e made whole for any losses of pay, credited for railroa

          retirement, vacation and any other related losses due to the discipline assessed."


F C®

 . .: . The Third Division thAdjustment Board. upon the hole record a all, the ei enc, fi s tat:
 Form l war No. 37261
 Page-Docket o. -36919
 . 0-3®01-3-541

The carrier or carriers and the employee or employees involved in tis 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 Claimant established and holds seniority, dating from ay 19,1969; in the Track ubdepartment: n the day in question, he was assigned and was working as Track Maintainer on the Helena Subdivision under the supervision of Roadmaster

M. Bernard at Great Falls, Montana. The Claimant was assigned to operate a y-rail pickup truck weighing less than 1:5 tons in capacity, equipped with hy-rail attachments.


The instant incident occurred on ay 19, 2000. At approximately 1500 hours, the Claimant and Machine Operator . Devera were inspecting track, traveling in the hy-rail at a speed of approximately 20 to 5 miles per hour. At that time, the h-rail truck derailed on a curve at Mile Post 155.5 on the Helena Subdivision, moving 114 feet off of the track, an additional 17 feet up a steep embankment, and eventually flipping over and coming to rest on its roof. The Claimant was traveling t the speed of 0 to 5 miles per hour, although there was a posted speed limit of tiles per hour: However, it should be noted that the Organization. contens said posted limit applied to trains,, not h-rail vehicles.. hike neither the Claimant nor his co-worker was injured, the hyrail experienced significant me.


      By letter dated ay 24, 2000, the Carrier directed the Claimant to report o

ay 31, 2000, t"Attend investigation in the NSF Annex Conference Room in Great
 Falls, T, t 1000 hours on Wednesday, ay 31, 2000, for the purpose of ascertining
 the facts and determining your responsibility, if any, in connection with your alleged
 involvement when BSF Hyrail vehicle 13063 derailed in the curve and rolled over at
 approximately 1550 (sic) hors n Friday, ay 1 , 2000 at Mile Post 155.5 n the
 Helena' Subdivision while e assigned-Io the'Mo'ntana Division." The Investigation -was
 postponed t was ultimately n July 1, 000:

 in lettr dated a ust 1 , 00, Road master ® L. Bets, notifie the Claimant. as follows:

      "This letter ill contt as a result of investigation held n July 1 ; 2000 concernin your failure to determine proper see

. Form 1 . Award o.761
      a a 3 Docket o. -36919

      g

      -3-01-3-541

      taking into consideration the track conditions, such as grade,

      curvature, rail conditions or, other conditions which might adversely

      affect the safe operation of on-track equipment and your failure to

      wear seatbelts while operating hyrail involved in rollover incident at

      approximately 1500 hours on Friday, ay 19, 2000 near MP 155. n

      Helena Subdivision, you are issued a Level S- (90) ninety day

      suspension for violation of Maintenance of Way Operating Rule 6.50.1

          'd Maintenance of Way S'fety Rule S-14.1.2. Your p oblationary

          n a r

          period will a for three (3) years."


          The (fir anization claims that the discipline imposed upon the Claimant was g unwarranted harsh and excessive. The Organization contends that the burden of roof in 'a. discipline matter such as this is on the Carrier; that burden of proof has not

                                        ®

    been met. While the Organization concedes that the Claimant was involved in said

    accident it is the Organization's position that the accident vas not caused by the

    Claimant's negligence. It agues that the Claimant was operating the vehicle correctly

    and that equipment failure caused the accident. In addition, the Organization claims

    that it was not provided ith an adequate notice of the charges and finally, that the

    conducting prejudged the Claimant. According to the Organization, the Carrier

    should now a required to clear the Claimant's record of any mention of the incident,

    to coin ensate him for all of his lost wages, including lost overtime, and to make him

    p

    whole for vacation, holidays, and seniority.


    Conversely' the Carrier takes the position that it met its burden of roof. The Claimant was afforded fair and impartial Investigation in accordance with the rquireents of the Agreement. The Carrier considers the Claimant guil s charged. According to the Carrier, a review of the transcript developed during the Investigation leaves no doubt that the Claimant violated the applicable ides.


    In discipline cases, the Board sits s an appellate forum. a o not weigh the evidence novo. s such, our function is not to sstitute our judgment for the Carrier's nor to decide the matter in accor with what we might or might riot have done had it been ours to determine, but to rule upon the question f whether there is substantial evidence to sstain a finding of uilty. f the question is decided in the affirmative, a are not warranted in disturbing the peal unless a can say it appears fro the record that the Carrier's actions were unjut, nrasl or arbitrary, s

    td constitute an abuse the Carrier's s discretion,',' (See Second Division Award 7325,

    Third Division Award 1 1.)

For 1 Award o.761
 Page 4' Docket o. NW-36919'.
 04-3-01-3-541

After a review of the evidence, the Board finds that the Carrier has proven that on ay 19, 2000, the Claimant was operating a hy-rail at a high rate of speed, thereby directly leading to the accident in question in violation of the Rules cited by the Carrier. The Board finds that the Claimant was operating the by-rail. at speed that as unsafe, for conditions.


However; we sustain the Organization's position with regard to the eventual charga that the Claimant was not wearing his seatbelt. We find that the Claimant vas not initially charged with a failure to wear his seatelt. Thus, we find that the Claimant was not on notice of said charge, a violation of .Rule 40. See Fourth Division Award 13 ". . . It is a fundamental principle that n employee can only be found to be i

    (

violation of those rules with which he is charged, as those rules are defined in the Notice of Charge:")


Based on this determination, we find that the discipline imposed *in this matter, was excessive. a find that a more appropriate discipline shall be 60-day suspension with a two-year probation. Thus, a will reduce the discipline from a 0-day ss ension with a three-year probation to a 60-day 'suspension with a 2-year probation: p

The Claimant shall be made whole for the additional 30 days served.

                        AWARD


      Clai sustaine in accordance with the Findings.


                          ORDER


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 the
 and effective on or before 30 days following the postmark date the and i
 trnsmitte to the parties.

                      TIT T BOARD

                      By Order f Third Division


ate at Chicago, Illinois, this 5th ay f November 2 .