BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
 Case No. 126
 and )
 Award No. 103
 UNION PACIFIC RAILROAD COMPANY )

Martin H. Malin, Chairman & Neutral Member

T. W. Kreke, Employee Member

B. W. Hanquist, Carrier Member




STATEMENT OF CLAIM:








FINDINGS:
Public Law Board No. 6402 upon the whole record and all of 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 to the dispute were given due notice of the hearing thereon and did participate therein.

 On September 13, 2007, Claimant was notified to report for a formal investigation on September 19, 2007, concerning his alleged failure to ensure that the main line switch was properly lined and locked after tying up the crane that he was operating on August 18, 2007. The hearing was postponed to and held on September 27, 2007. On October 16, 2007, Claimant was advised that he had been found guilty of the charge and had been assessed discipline at UPGRADE Level 4C, a 120-day suspension.



hearing because it conducted a joint hearing with Claimant and the Foreman. We do not agree. Both employees were investigated for their responsibility in the same incident and the evidence against each employee was the same. We have scoured the record and we fail to find any evidence admitted against one of the employees that prejudiced the rights of the other. There is no prohibition in the Agreement of joint investigations and we see no way in which Claimant's rights were prejudiced by the procedure. We conclude that Carrier afforded Claimant a fair and impartial investigation.

 The record reflects that on August 18, 2007, Claimant was the Hoisting Engineer and chief operator of the MP65 crane, working on a bridge replacement at Bridge 0.93 on the Lockhart Subdivision near Smithville, Texas. At around 5:00 p.m., as the Form B was expiring, Claimant tied up at an industry track just off the main line. The Assistant Hoisting Engineer lined the switch for the industry track so Claimant could move the crane. The switch was not relined for the main track and was not locked. Early the following morning, a train on the main line ran through the switch. The Assistant Hoisting Engineer admitted his responsibility for failing to tine the switch back to the main line and failing to lock it and accepted the Level 4C discipline.

 Claimant testified that he was familiar with Rule 8.3. He further testified that he "failed to go back and double check the switch." after tying up the crane. He testified that he, the Foreman who was Employee-in-Charge and the Assistant Hoisting Engineer were required to have a job briefing to discuss the position of the switch after tying up the crane and that no job briefing was held. We hold that Carrier proved the charge by substantial evidence.

 The Organization objects to the severity of the penalty. Our role in reviewing the penalty is very limited. We are not authorized to disturb the penalty merely because we would have imposed a lesser penalty had we made the decision to discipline. We only review the penalty to determine whether it was arbitrary, capricious or excessive. We note that failure to properly line and lock a switch in dark territory can have severe consequences for safety. We further note that the penalty was in accordance with Carriers UPGRADE progressive discipline policy. We are unable to say that the penalty imposed was arbitrary, capricious or excessive.

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                                              PLB No. 6402 Award 103


                        AWARD


    Claim denied.


                  // AV


                    Martin H. Malin, Chairman


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B. W. Hanqutst T. W. Kreke
 Carrier Member sqA 17, 2W8 Employee Member

      Dated at Chicago, Illinois, August 31, 2008


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