Form .1 NATIONAL IL JUST T BOARD
 THIRD DIVISION
 . Award o®37266
 Docket No: -37763
 043-03®3-6

 The Third Division c®sisted of the regular members anal in addition efere Steven . Bieriwhen award was rendered.

 (Brotherhood, of f Maintenance of Way Employe's
 PARTIES T DISPUTE:

STATEMENT OF CL
















FINDINGS:
. The Third Division f the just ent ®a, upon hole con all-the
 evidence, finds t
 For 1 Page
Docket o. -37763
 -3-0-3-6

 The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Lor Act, s approved June 21,1934.

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

At the time of the incident on October 2, 2001, the Claimant held seniority and was assigned as a Tamper Operator to Tie Gang 9062 and vas working on the Peoria Subdivision. Tie Gang 9062 was regularly assigned to work from 7:00 A. until 5:00 P. M. The Claimant worked under the supervision of Track Supervisor G... Steward, Foreman T. Koniak and Assistant Foreman . Draft.

 Oh October 2, 2001; Trackmen V. G. Draft and . Ortiz were each operating rail lifter, or plater, behind which the Claimant s operating a tamper. Draft stopped his plater near Milepost 12.4 and held a mini-job briefing with Ortiz, acknowledging that Ortiz would stop his plater behind Draft's placer within the proscribed 50-foot limit between machines. The Claimant approached the idle laters in his tamper and informed Ortiz that a would continue tamping ties up to is platen inside the 50-foot limit. However, the Claimant

 not specify the distance he would leave between his tamper and Ortiz's placer, hen the Claimant attempted to to the tie directly behind Ortiz's platen the Claimant's tamper hit tit's placer, bending the placer's bumper. The Claimant acknowledged to Ortiz and Dratat a had mistakenly it the placer.

and place responsibility, if any, that while working s Tamper Operator, y
 allegedly entered, into work zone on October 2, 2001 while operating a tamper on
 the Peoria Sub, 12.4, n it another piece f equipment, hick allegedly.
 violates -track safety." The Claimant s resent for the e November 6, 2001
 Investigation.

 In letter date November 1, 001, ® . eun, Manager Track Programs, otie the Claimant that he s to receive Level Discipline (5-day-
 Form 1 Award No. 37266
 Page 3 Docket . -37763
 0®3-0-3-6

Suspension) "for your violation of Chief Engineer Instructions 136.7.4 and le 1.1.2. . . .


The Organization claims that the discipline imposed upon the e Claimant was
 unwarranted, harsh, and excessive. The Organization contends that the burden of
 roof in discipline matter such as this. is on the Carrier; that burden of proof has
 not been met. While the Organization concedes that the Claimant as involved in
 said accident, it is the Organization's position that the accident as extremely minor
 and certainlY not worthy of a Level 3 discipline. According to the Organization, the
 Carrier should now be required to clear the Claimant's record of any mention of the
 incident, to compensate him' for all of his lost wages; including lost overtime arid to
 make him whole for vacation, holidays, and seniority.

Conversely, the Carrier takes the position that it met its burden of proof. The Claimant vas afforded a fair and impartial Investigation in accordance with the requirements of the greeent. The Carrier considers the Claimant guilty as charge. According to the Carrier, a review of the transcript developed during the investigation leaves "no doubt" that the Claimant violated Union Pacifi Chief Engineer Instructions 136.7 and Rule 1.1.2, as follows:












I discipline cases, the r sits s npell to e forum. We do not weigh the
 evidence nvo. s such, r function is not to substitute judgment f t
 rrir's nor to decide the after in n accord with what we.might or might not have.
 one had it been ours to determine, but to la on the question. of net there is
 Form 1 Page


substantial evidence to sustain a finding of guilty: If the question is decided in the affirmative, vie are not warranted in disturbing the penalty unless a can say it appears from the record that the Carrier's actions were unjIust, unreasonable or arbitrary, so as to constitute n abuse of the Carrier's discretion. (See Second Division Award 73, Third Division Award 16166.)


After a review of the evidence, the Board fads that there was substantial evidence in the record to sustain the Carrier's position in whole: We note that the Carrier roved that on October 2, 2001, the Claimant vas operating tamper and hit another piece of equipment in violation- of Union. Pacific Chief Engineer. Instructions 136.7.4 and Rule 1.1.2. While the Board. acolee that said accident vas minor and fortuitously o injuries resulted, the accident was nonetheless due to the Claimant's error. The minor nature of the accident does not excuse the error. See Third Division. ,Award 33157.


Further, vie find that the Level discipline imposed. reasonable and vie ill not disturb it.


Claim denied.

 AWARD
E

 This Board, after consideration the dispute identified here order
 that an Award favorable to the Claimant(s) not be made.

 TI T
 By Order of Third Division

 ten Chicago, Illinois, this t ay of ove eon