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r STATEMENT F CLAIM: "Claim of the System Committee of the Brotherhood at:

        1. The Level 2 discipline assessed Laborer S.. Clark for his allegedly not operating his machine properly on September 1, 2003 which resulte

        injury to another employe was without just and sufficient cause and base on __ _

        unproven charge (System. File -9482 /1873 0 ).


        2: Laborer S.A. Clark shall now have the charges against him `. . . must be overturned and. the level 2 discipline removed fro his record. Furthermore, Claimant inust not be required to serve the five (5) day suspension."'


      At the time of the events "leading up to this claim, the Claimant regularly vas


assi ed to work for the Carrier as a Laborer. n the date in. question, however, the

 Claimant was operating an end-loader..
 y letter dated September 22, 2003, the Claimant as notified tear for
 formal investigation and hearin to evelothe facts an determine the Claimant's
 responsibility, if any, in connection with the Claimant's allege failure to properly operate
 the mchine, resulting in an injury to another employee. The hearing was conducted as

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scheduled on Setember 26, 2003. y letter dated October 3, 2003, the Claimant was notified that as a result of the hearing, he had been found guilty as charged, and he was being assessed a Level 2 discipline. The Organization filed a claim challenging the Carrier's decision, and the Carrier denied the claim.
 The Carrier initially contends that the Claimant was afforded all elements of due process in accordance with the Agreement. The Claimant received adequate notice of his investigation, was allowed ample representation, and was able to present his own witnesses, as well as cross-examine all of the Carrier's witnesses who were present at the investigation. The Carrier points out that the Organization failed to make any procedural ob ° ections throughout the on-property handling of this case, which operates as a valid a waiver of any such challenge. The Carrier therefore asserts that this claim coot be granted on any procedural basis.
 The Carrier then argues that ere is no basis for the Organization's assertion at its finding of guilt is unsupported by the testimony at the investigation. r ne a er asserts that the Organization is wrong in arguing that the Carrier's witnesses contradicted themselves, and the Carrier maintains that the testimony regarding what happened on the day in question is reasonably clear d consistent. T he Carrier points out that the Claimant admitted that he did not check to ensure that other employees were in the clear before moving the bucket on his end-loader. The Claimant also failed to sound his ho or signal in any way before moving the loader bucket. The Claimant asserts that it is
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settled policy on a property at admission oilt is per se substantial evidence a rule violation.
 The Carrier contends that the Claimant was disciplined for his part in the accident, and not for the actions of any other person. The Carrier asserts that s situation is no different from others involving an accident in that more than one employee was involved and was investigated. The Carrier insists that each employee is investigated d disciplined separately, in accordance with his or her culpability in the accident. The Carrier maintains that the Claimant was assessed Level discipline for his negligence in moving his loader bucket without ensuring that no one was. i's red zone.
 The Carrier goes on to contend that once arbitral panel that substantial
 evidence supports fi'ding of guilty, the panel lacks authority to overt. a level o
 discipline assessed, even if the discipline may seem harsh, unless ere is a sufficient
 demonstration that the discipline was arbitrary, capricious, r abuse oier
 discretion. The Carrier insists that the discipline at issue was not arbitrary, capricious', or
 an abuse of Carrier discretion. a Carrier emphasizes that the Level discipline
 assesse in the Grievant's case was correct n in accordance with a Carrier's
 UPGRADE Policy. There is no evidence of arbitrariness or capriciousness i connection
 with the assessment of is discipline, so ere is no resn for this discipline
 to be overturned.

        Carrier. ultimately contends that the instant claim should denied ° its

entirety.

      I3A C1 ay q31


The Organization initially contends that the testimony of the Carrier's witnesses

 was unreliable and contradictory. The Carrier's witnesses appeared not to ow what
 happened on the day in question. The Organization insists that only the e Claimant's
 testimony was constant throughout the investigation. The Claimant testified that when. he
 left the front of the cat, everyone was in the clear. The Organization further asserts that it
 is the responsibility of all employees to notify the operator of any piece of machinery
 when they are going to enter the red zone or work zone of that equipment.
 The organization points out that if all el-ployees a own to be in the clear o the equipment that an operator fusing, then the operator has the right to operate that equipment as intended. If an employee intends to enter the red zone, then it is at employee's responsibility to notify the operator of his intent. The machine operator cannot beheld accountably for another employee's error in judgment or failure to notify the operator: In this case, the other employee violated he is by falling to notify Claimant that he planned to enter the red zone.
 The Organization maintains that there is nothing in the recur to support the Carrier's charge against the Claimant. Instead, the evidence shows that a other employee involved, d not the Claimant, violated the Carrier's rules.
 The Organization ultimately contends that the instant claim should be sustained in its entirety.

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The parties being unable to resolve their dispute, this matter came before this

 oard.

      This Board has reviewed the evidence and testimony in this case, and we fin that

there is sufficient evidence in the record to support the finding that the Claims. t was
 guilty of failing to ensure that the bucket on the end-loader that he was operating was
 the clear before he moved it. The Claimant's action violated d Carrier Rule 43.2, which.
 states:

          efore moving their machines, operators must w employees d ensure at they are in the clear.

The Claimant admitted that he only checked the re zone before he climbed ac into the loader and a admitted that a did not sound the ho m.
 Once this Board has determined that there is sufficient evidence in a record to
 support the guilty finding' we next to our attention to the a of discipline imposed.
 This Board will not set aside a Carrier's imposition of discipline unless we find its actions.
 to have been unreasonable, arbitr, or capricious.

 The Claimant. in this case received Level discipline, which consisted sus ension. Given the seriousness of the violation plus the fact that the Claimant a
 reached Level 2 in t Carrier's discipline syst, this oar cot fin tat t i

 acted unreasonably, arbitrarily, or capriciously when it assessed `ant Level discipline. Therefore, the claim must ' .
 The claim is denied.

 OR~6''t NIZATION M ~ ER

 DATED: I I - 1~ - CQ~
PETER R. ME ERS
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