BROTHERHOOD <)F MAINTENANCE «F WA11`
 EMPLOYES DIVISION - IBT RAIL CONFERENCE

 NATIONAL MEDIATION BOARD PUBLIC LAW BOARD NCI(. 7048 ;WARD NC). 84, (Case No. 84)
l3NSl" RAILWAY COMPANY

 William Ft. Miller. Chairman &Neutral Member
 Samantha Rogers, Carrier Member
 David D. Tanner, FImployee Member

 S I=ATFMENT C)F CLAIM:
"Claim of the System Committee of the Brotherhood that:
The Carrier violated the Agreement commencing December 9, 2010, when Claimant, Daren W. Morris (164661 1), was issued a Level S 30-day Record Suspension with 1 year review period, f«r his failure to maintain a safe operating distance between working machines resulting in a collision while assigned as a Machine Operator on December 9, 2010. `l`he Carrier alleged violation of Ell 14.3.3 Maintaining Roadway Equipment.
As a consequence of the violation referred to in part I the Carrier shall remove from the Claimant's record this discipline and he be compensated for his lost time and expense and otherwise made whole." (Carrier File No. 14-11-0042) (Organization File No. 130-1302-1076.CLM)

 2.
li'INDINtFS:
i'uhlic Law I3ocird No, 7C)48. Upon the whole record and ail the evidence. finds and holds that l°rnployee Etnd tr'arrier arc employee and carrier within the meaning «fthe Railway l.abor Act its amended: and that tire Board has -jurisdiction over the: dispute herein. and that the parties co the dispute have participated in accordance t« the Agreement that established the ti«ard.

 ( to December 23. 2010, Claimant was directed to attend a formal Investigation on January 4. 2011. concerning in pertinent part the following charge"


                                Page 2


      collision while assigned as Machine Operator,


      This investigation will determine possible violation of El t-x.3.3 Maintaining Roadway Equipment."


t)M.lanuarv 't>. 2011, Claimant was notified that he had been !'Mind guilty as charged acrd «as assessed a Level S 30 Day Record Suspension along with a tine Near probationary period.

 It is the Organization's position that the Claimant vas denied 4t "fair and impartial" I learing because the Notice of Investigation denoted the location site: of the incident «f' December 9, 2010, as being on the I lereford Subdivision which was improper because Claimant Nvas working can the Plainview Subdivision. It argued that the Notices are very important and when they are vague and ambiguous, as was the case in this instance it is irnpc)ssihIe to prepare a proper defense and oil that basis alone the Organization reasoned the: discipline should he set aside without even addressing the merits, Fuming to the incident it argued that Claimant was operating a Ballast Regulator. According to it he had adequate spacing between his machine and other equipment while pulling rock up on the shoulders behind the Production hamper. I Ie had filled his shoulder blades arid wars preparing tea stop, maintaining the required distance when a major mechanical malfunction with the braking system occurred. It argued that he quickly proceeded to do everything possible. Ile immediately threw the travel into reverse because of' the brake failure and applied the parking or service brake, but unf6rtunately the brake tailed to stop the Regulator beli,rre it "tapped" the'Famper in the rear. It asserted that the accident vvas unavoidable and it concluded by requesting that the discipline he rescinded and the claim sustained as presented.

 It is the position of the Carrier that the Claimant was not denied his "due process", Agreement rights because the Notice had the incorrect Subdivision shown. Ifcreford Subdivision, when the accident took place <>n the: Plainview Subdivision. It argued the Notice did have the correct Mile Posts and the Organization and Claimant had more than enough ntformation contained in the Notice to prepare a proper defense. On the merits it argued that the Claimant admitted that he ovas guilty of-running into the hack ofrnachine in front «[hire because lie panicked :end did not use the service brake as quickly, as he could have err stop the Ballast Rcf;tr1ator. It Further argued there was no record theft C'laimant's machine malfunctioned. It closed by asking that the: discipline not be disturbed and the claim remain denied.

 The Board has thoroughly reviewed the transcript and record ofevidence and will first address the Organization's procedural argument. The Organization is correct that Notices must le clear enough that the charged employee understands the allegations rttade against hurt s« as to prepare a proper defense. Examination ofthc transcript confirms that the Claimant and Organization understood where, when and what the charges were. The Board has determined that the Investigation and appeal process met the guidelines ofRule l 1fal the: Discipline RuIc Lind Appendix No. 1 1.
 P.L.B. No. 70-t8
 Award No. 8=>l, Case No. 84
 Page 3
There is no dispute that on December 9. ?01(), t`laimant was involved in a minor accident when his Ballast Regulator "tapped" the rear end ofthe Pruductictn Tantpc:r. As pre\ i0uslv stated in Award No. 8`? of this Board, it has been recognized by many arhitral tribunals that situations ,arise in the field or can the; factory floor in which employees. though no fault of their own, arc involved in accidents or situations which might cause injuries <}r damage to machinery and arc the ecsult ofunavoidabie work hazards. The question at issue is whether the t'I<timaot failed to maintain safir operating distances between working machines or was he involved in an unavoidable work hazard.

 On page I() ofthe transcript the Claimant testified that when lie went to step the t3allast ~L4tt<>r with the tr=avel reverse lever there was a mechanical Iailure and the transmission

 ,jumpec3 into neutral which did not allow the. hydrostatic transmission to apply its brake. The cfueStioning <rfihe (`C:.aimant contIinued can page I I of the: transcript about the accident as f«llows:

    "Jeff`ereY Soukup-. Okay. Urn, in that rule, that 1.3.3, Maintaining Roadway Fctuipment, um, can number five it say, uh: Maintain safe operating distances- It says keep, uh, equipment 50 feet, 50 feet apart while working and 300 feet apart bile traveling. Uh, were you maintaining that Stl feet while you were working:'


      L)aeen Morris: Yes `sir. 1 was approximately 110 to 120 feet when t put the reverser up to the neutral position to allow the transmission to start braking me.


.lcffercy Soukup: Okay.

 wren Morris: Which, if it would not have dumped rout of ;car, it would have been way more than enough to get stopped within that 64) feet area and not getting inside of this 5(l feet.
.lefferey Sol)
        kufr: Right, um, so.


1)aren Morris: C:eneraEty, generally i# takes 20 to 3(> feet to step,
,tefferey Soukup: ?() to 3() feet, with th-
I)aren Morris: The transmission, when the transmission is braking.
flefferey Soukup: Okay, 2_) to 30 feet to strip when transmission is braking.
t)aren Morris: Yes. Yes Sir."
 t'.L.f~3. No. 7048
 Award No. 84, Case info. 84
 Page 4
On page 1? ofthe transcript the Claimant further testific=ci tha3

 travel lever ire

 the forward position anti applied the service brake to halt the: forward movement ot'his machine t<} no mail.

 E`hc: Carrier argued that the cause ofthe accident was because the Claimant panicked during the incident. It relied upon the following testimony:

    _Gary Marquart: .Iust, uh, a couple. One, this was a mechanical malfunction that occurred with your, the machine you were operating on that day.


I)aren Morris: That is correct.
      Gary Murquart: Okay. And, you said you almost had it stopped, uh, in advance of the bumping of the two machines'..'


      t)aren Morris: Yes Sir, I had, I when t kind of panicked and when I gathered myself anti grabbed the service brake, the brakes were being applied, hue, uh, I, I needed another ten feet to stop with:gut making contact."


Because the Claimant had a moment of'panic, which would ha%e been a fairy nktrniaf reaction of'anyone, does not mean that he failed to properly respond to the situation nor does it negate the n-refuted fact that ballast Regulator malfunctioned. That malfunction was further attested to by Ballast Regulator C. McGinnis's written statement wherein he wrote that he had operated the same machine as the Claimant from January to July of"?t>1f?, and during that timeframe, he experienced the same malfunction problem the Claimant had when the hydrostatic transmission brake, failed to work. McGinnis further stated he thought the problem had been fixed in March, but it now appeared that it was only a temporary fix. C'laimant's testimony was not rebutted that his machine malfunctioned and ht; was operating well beyond the required safe distance between orating machines. The record substantiates that sin December ~~ 2t11 f). the Claimant did not violate E1 14.3.3 Maintaining Roadway Equipment. but instead was involved in an unavoidable work hazard that way the result of a mechanical malfunction, thercf`ore, it is determined that the Carrier did not meet its burden ofTfsroof:

 The Board finds and holds the discipline is set aside and the claim is sustained in accordance with dart ? ofthe claim and the C'laimant's disciplinary status reverts to that he field prior to Jams;pry fit). 2011 . in accordance with the Carrier's 1'c>liey for Employee Pertormance :'Wec3untabiiity f 1'l=1'Af.
 P. fiL.B. No. 7048
 Award No. 84, Case No. 84
 ["age 5

 WARD
Claim sustained in accordance with the Findin!,s and the Carricr is directed to make Ow Award effective can or befi«re 30 days fiofilowing the date the Award was signed by the parties.

 William fit. Miller. Chatrman & Neutral Nfernber

 Mal
 Samantha Rogers. CurricjMernbcr

 Ac4ard Date: s,

 David fi). Tanner. fi?mpl«rcc: Member