ST:.TMENT OF GLADVS:
1. The Carrier improperly dismissed from its service Class 1 -Equipment Operator William V. Capozzi, as of October 16, 1964.

 2. Work Equipment Operator Class 1, Villiex·. V. Capozzi, be now reinstated in the Carriers service, with full seniority restored, vacation rights, and all other benefits provided by the effective e_greer:ent. Lnd further trust he be rajrr bursed for all wages lost by him, due to this improper action, complained of i.^ Part 1 of this claim.

 FINDIN,GS: This dispute concerns the dismissal of an equipment operator for neg
 ligence in not inserting the "locking pin" in the boor.~ of the tie handler he had
 been operating that day. The evidence supports Carrier's findirgs that Claimant
 did not insert the pin ii= the boom and that later in the afternoon, when the equip
 ment was being towed along with other machines to the gang's headquarters at
 Olean, New York, for tie-up, the boon of the tie handler swung over the westward -
 track and was struck by the engine of a passing train. i_s a direct result of
 these events, a tie clamp broke loose from, the boon and struck and fatally injured
 an assistant foreman.

 It is emphasized by Petitioner that at the close of Claimant's wark-day on the afternoon in question, while he was still at his -machine and its rotor was running, Extra Gang Foreman ordered him to leave it and go to the rear of the gang to assist in other work. Claimant promptly complied with these orders after shuttting off the rotor of the machine and did not return to it since his day's work was completed. In Claimant's absence, other employes then lined up and coupled the work equipment, including Claiuant's machine, and proceeded to tow then to the headquarters pcint at Glean, New York, in accordance with regular practice.
point. For one thing, the record lepves no question. but that Claimant was nagli,~en't
 and thi-.t that negligence wc.s a direct cause of the accident. None; of the circus
 stances mentioned by retitioner detract from= the significance of that compelling
 consideration. He should have known enough to secure the bear-- and his lack of ex
 perience with the machine does n:A constitute a persuasive defense under the air
 cuastances. Lnothor difficulty is that the evidence does not adequately establish
 that any other er:ploye actually had the duty to insert the pin in the boor of Claim:
 ant's tie handler or should have observed the hazardous condition or checked the
 machine to rake certain that the boar- was secured. Ls soon as the boon swung out
 and the condition was observed by the F.reman, he attor.pted to remedy the situation..
 On this record, wo c^nrot validly hold that Carrier was in error or unreasonable
 in its findings of fact.

r', , hward ho. 26; 1tun No. 147

      Vic also find no uerit is lcaitiencr's centontion. thet D^rr7.PT i^.ili,Cl t0 give Cla;, unit tho notice of char-es or hearing contu.:plrtcd by Rulc 30. The record showed that he ruceivod the following notice:


                  "In accordance with Rule 30 of ..Eroeiient betweun Erie Railroad Conpany and Erotherhood of i2.intenance of Way DaployoGs, effective January 1, 1952, you are hereby notified to present yourself for investigation in connection with injury to e:r. Thonas G. Lunar., assistant fororan, which occurred at M.P. 393.75 at Olean, New York, on jugust 14, 1964, at 3:45 P.k.


                  The investigation will be held on iionday, Lurust 24, 1964, after aarival of train No. 5 in office of division engineer, Room 502, Terminal Building, Youngstown, Ohio.


                  1.t this investigation, you may have present representative (or representatives, according to agreement) or any witness you desire.


                  If you are unable to attend the investigation, you should contact the undersigned at once, giving the reasons.


                                      Yours very truly,


                                      J. K. Veikol,

                                      Division Engineer"


      The above notice was received on :.ugust 18, 1964, and was therefore ti.:ely within the weaning of Rule 30 which provides for not less than three days notice. l.s a matter of substance, it refers to Rule 30 which only concerns disciplinary hearings and clearly placed Claisant and his representatives on notice that a hearing of that type would be held at the designated ti.-e and place. Its significance was also clerxly brought out in the sentence relating to "represents- --tive" and "witness: "'. Clai=mt appears to have been accorded all rights it escribed - by Rule 30 and no reversible error is found. 1. hearing was held an, he was ably represented there and given fair opportunity to call, exr_-=ne and cross-exard.ne witnesses and develop his case. Neither Claiz=t nor his representative clamed surprise at: the hearing or sought additional tii:e to r.eet the issues.


      The discipline in this case L_ay be r'ore drastic and extreme than we :fight find appropriate. However, considering the record in its entirety as well as Carrier's enorr_ous responsibility for the safety of its personnel and others, no justification is perceived for disturbing the disciplinary action in controversy - and substituting our judg_ent for that of ::anagenent in the present situation.


              We therefore are constrained to deny this clam.


      n1dl RD: Clain denied


            Dated at low York, VI.Y. this 29th day of October 1968.


                          /s/Harold :=. 'ioston -

      H:ROLD M. UESTON, NIEUTRLL

      /s/__. J. Qunningha:_ /s/R . I, Carroll

      ORG.LNIZ&TION D~DER C1iLLRIM fit BMn

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