The Board, after hearing upon the whole record and all the evidence, finds t1lat the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended: this Board has jurisdiction over the dispute involved herein; and, the parties were given due notice of hearing thereon.
By letter dated October 8, 1984, Claimant Sanchez was advised by the Carrier as follows:'
Upon receipt of the above letter, the Claimant requested and was granted an unjust treatment hearing in pursuance of Article 48 of the current Rules Agreement.
The investigation was held on October 29, 1984, and by letter of November 5, 1984, Carrier advised Claimant as follows:
it is the position of the Carrier that close examination of the evidence developed at the investigation indicates that Claimant was traveling with Tamper 226 RH in a work move, with the buggies down in a work position,-and that as such, his attention was focused on those buggies as they were trailing through the switches, and he failed to properly observe his movement in order to prevent the tamper from getting too close to the regulator.
Further, that as a result of Claimant failing to maintain a safe distance between machines, he could not stop in time to prevent the buggies from colliding with the regulators plow.
The Carrier also states that contrary to the organization's contentions, the accident was not caused by defective brakes on the tamper. In this regard, the Carrier submits that it was the testimony of a witness at the investigation that the brakes were repaired prior to the accident and that it was not reported to, him that the tamper was having brake trouble after the accident.
In setting forth its position that the accident was the result of a malfunction in the brake system, the organization submits that testimony introduced at the investigation shows that Claimant had previously reported brake problems on this particular tamper on at least three separate occasions prior to the accident, and that the brake system had been worked on the day before the accident.
It asserts the accident occurred because the carrier had failed to keep its equipment in a safe operating condition.
the result of a brake malfunction. Certainly, even if it was to be assumed arguendo that the brakes on the tamper were known to be faulty, this should have alerted Claimant to be more careful in following the ballast regulator, and not to have had his attention focused on the buggies as they were trailing through the switches. Furthermore, as indicated in the transcript of hearing, notwithstanding any brake malfunction, the Claimant admitted that he was not aware that the- ballast regulator had stopped on the track in front of him until after he had completed watching the rear buggie of the tamper clear the frog on the third switch, which was at about the same time the front buggie was about to hit the ballast regulator.
The record failing to show any basis for this Board to hold that the suspension be modified or set aside, the claim will be denied.