BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
 and )

Award No. 2
 UNION PACIFIC RAILROAD COMPANY )

Martin H. Malin, Chairman & Neutral Member

R. B. Wehrli, Employee Member

D. A. Ring, Carrier Member


                Hearing Date: April 6, 1998


STATEMENT OF CLAIM:

      1. The Carrier's dismissal of Track Machine Operator Juan

          M. Baquerizo was in violation of the Agreement and, in

          any event, unduly harsh and clearly an-abuse of

          discretion. (organization File D-259; Carrier File

          1046833 D).


      2. Claimant Baquerizo's record shall he cleared of all

          references to this dismissal, and he must be returned

          to service immediately with all rights restored

          unimpaired and pay for all time lost subsequent to and

          including October 15, 1996.


FINDINGS:

      Public Law Board No. 6089, upon-the whole record and all the

evidence, finds and holds that Employee and Carrier are employee -
 and carrier within the meaning of the Railway Labor Act, as
 amended;-and, that the Board has jurisdiction over the dispute
 herein; and, that the parties tothe dispute were given due
 notice of the hearing thereon and did participate therein.

 On October 29, 1996, Carrier notified Claimant to report for - an investigation on November 12, 1996. The notice charged
 Claimant with not being alert and attentive while working as a -
 Track Machine Operator on October 15, 1996, at 1:35 p.m., -
 resulting in Claimant hitting a parked spike Duller, in violation
 of Rules 1_.1.2,--42.2.2, 42.8 and 43-.2,--and Contract Safely rules
 135.7_3, and _36.7.4. carrier-alsowithheld Claimant from
 service, pending the outcome of -the investigation.
 - ~6 89 ;~

 The hearing was held as scheduled. On November 26, 1996, Carrier advised Claimant that he had been found guilty of the charge and had been dismissed from service.

 The organization contends that Carrier failed to provide claimant with a fair hearing. The Organization maintains that Carrier prejudged Claimant's guilt, as evidence by its withholding him from service. Furthermore, the organization argues that Carrier-asked the acting supervisor questions calling for speculation and denied Claimant his right to face his accuser by failing to call Claimant's supervisorwho had signed the letter of charges. The organization observes that Claimant did not act willfully, that Claimant was actually attempting to look out for Carrier's interests at the time of the accident, that the accident resulted in only minor damage. Under these circumstances, in the organization's view, dismissal was excessive.

 Carrier contends that it provided Claimant with a fair and impartial hearing and that it properly withheld Claimant from service. Carrier further observes that Claimant admitted his guilt. Carrier maintains that dismissal was imposed in accordance with Carrier's UPGRADE (Union Pacific General Rules for Administering Discipline Effectively) policy,- which Carrier points out has been upheld in numerous awards.

 We consider the organization's procedural arguments first. We find no basis for overturning the discipline on procedural grounds. We find that Carrier properly withheld Claimant from service. Rule 48 (o) authorizes Carrier to withhold an employee from service pending a hearing where the charges involve flagrant or serious violations. Inattention when operating a machine resulting in a collision with another machine certainly is a serious violation.

 We have reviewed the transcript and concluded that Claimant was provided with a fair and impartial hearing. Claimant was not denied any due process right of confronting his accuser or cross-
 examining the witnesses against him. Although the supervisor -
 signed the letter of charges, the supervisor was not involved in
 the incident. The acting supervisor was on duty at the time of
 the incident and investigated the cause of the accident. The
 acting supervisor was the key, indeed only, witness against
 Claimant and Claimant and the Organization had the opportunity to
 and did cross examine him.

      Therefore, we turn to the merits of the claim. There is no -

question that Claimant was inattentive and violated the rules
 cited in the notice of charges. Claimant was operating a tie
 crane and struck a spike pulling machine that was stopped on the
 track ahead of him. Claimant testified that he was looking at
 the floor of the machine, contemplating an oil leak and how to

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clean the machine to be able to locate the leak. He further testified that he knew the spike puller was in front of him and he knew he had to stop but he "just went blank for a split time."

 Accordingly, we turn to the penalty imposed. It is not our role to substitute our judgment for Carrier's concerning the appropriate discipline to be imposed. Our review is limited to determining whether the discipline imposed was arbitrary, capricious or excessive,

 Furthermore, Carrier's UPGRADE Policy, as a general matter, provides for fair, consistent and progressive discipline and is entitled to considerable arbitral deference. _. However, as our decision in Case No. 9, Award No. 1 exemplifies, deference to Carrier's UPGRADE Policy is not the same as a rubber stamp. We cannot abdicate our responsibility to review the discipline imposed to ensure that it is not arbitrary, capricious or excessive. Of course, the UPGRADE Policy ensures--that such cases will be rare.

 In the instant case, Claimant already was at discipline level 4 under the UPGRADE Policy. This resulted from three prior offenses: removing a blue flag set by another craft, failing to comply with proper tie installation procedures thereby causing the track to buckle, and failing to comply with a foreman's instructions. Claimant was given ample opportunity and incentive to correct his work habits and failed to do so. Dismissal in the instant case was in accordance with principles of progressive and corrective discipline as implemented in the UPGRADE Policy and was not arbitrary, capricious or excessive.

                          AWARD


      Claim denied.


                                Z,

                  Martin H. Malin, Chairman


                                              l

6a al _ILZI IAJ
 D.A. Ring, Z-B Wehrli
 Carrier Membe Employee Member

      Dated at ica , Illinois, August 17, 1998.


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