This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
On July 26, 2000, the Claimant, while operating a speed swing, was involved in a grade crossing accident at Mile Post 15.8 (the Portland Street crossing at White Bear, Minnesota) on the Withrow Subdivision. At approximately 8:45 A.M., the Claimant approached the crossing from the west. He looked to the north and south before proceeding. He proceeded into the crossing and struck a northbound 1997 Toyota Camry driven by S. LaBore. Although LaBore suffered only minor injuries, her vehicle sustained substantial damage. The speed swing was not damaged. The Claimant reported the accident to Track Program Manager Balmer who, in turn, reported the incident to local police. The Claimant was removed from service and subjected to a urinalysis, the results of which were negative. Thereafter, the Claimant was returned to service on August 1, 2000.
By letter dated August 3, 2000, the Claimant was directed to attend an Investigation to be held on August 18, 2000, ". . . for the purpose of developing all facts and circumstances and placing responsibility if any, in the highway crossing accident that you were involved in on Wednesday, July 26 when the speed swing you were operating collided with a 1997 Toyota Camry at Portland Street in the city of White Bear, MN in violation of OTS rule 23.2.4, GCOR rules 1.1, 1.1.1, 1.6 item #1, and safety handbook rules A, I and O:'
In a letter dated August 31, the Carrier notified the Claimant that as a result of the August 18, 2000 Investigation, he was suspended for a period of five days for violating O.T.S. Rule 23.2.4. Further, the Claimant was precluded from operating track cars as described in O.T.S. rules for C.P. Rail, and ". . . therefore, your seniority in Groups 1, 2, 3, and 4 of the Maintenance of Way Seniority Roster will be forfeited . . . ." The discipline was subsequently modified by a letter dated September 1, 2000 in which the Carrier defined the term "track car."
By letter dated October 24, 2000, the Organization filed an appeal on behalf of the Claimant alleging that the discipline was unwarranted. It asserts that the burden of proof in a discipline matter such as this is on the Carrier and that burden Form 1 Award No. 37421
has not been met. The Organization contends that the Carrier imposed harsh and excessive discipline against the Claimant. According to the Organization, the Carrier's decision to discipline the Claimant was based solely on the fact that an accident occurred and not that fault lay with the Claimant. The Organization claims that even if the Claimant was at fault, the discipline imposed was too severe.
Conversely, the Carrier takes the position that the Claimant was afforded a fair and impartial Investigation and was guilty as charged. According to the Carrier, the record contains substantial evidence to support the Claimant's culpability. It asserts that it met its burden of proof and that the discipline was appropriate in light of the two accidents in which the Claimant was previously involved.
In discipline cases, the Board sits as an appellate forum. We do not weigh the evidence de novo. As such, our function is not to substitute our judgment for the Carrier's, nor to decide the matter in accord with what we might or might not have done had it been ours to determine, but to pass upon the question of whether there is substantial evidence to sustain a finding of guilty. If the question is decided in the affirmative, we are not warranted in disturbing the penalty unless we can say it appears from the record that the Carrier's actions were unjust, unreasonable or arbitrary, so as to constitute an abuse of its discretion. See Second Division Award 7325, Third Division Award 16166.
The Board finds substantial evidence to uphold the Carrier's decision. The Carrier proved that the Claimant's negligence violated the relevant safety Rules and caused the accident involving LaBore. In addition, because the discipline imposed was reasonable, the Board will not change that result. See Case 7, Public Law Board No. 5842.