SPECIAL BOARD OF ADJUSTMENT NO. 956
BROTHERHOOD OF MAINTENANCE )
 OF WAY EMPLOYEES )
 and ) AWARD NO. 149
 CASE NO. 149
 NEW JERSEY TRANSIT RAIL )
 OPERATIONS, INC. )

 STATEMENT OF CLAIM:
Claim on behalf of T. Lees, Class 17 Operator, for egpungement of discipline assessed, payment for all time lost, and reimbursement for benefits lost during time withheld from service.

 Special Board of Adjustment No. 956, upon the whole record and all the evidence, finds that the parties herein are Carrier and Employes within the meaning of the Railway Labor Act; as amended; that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing and did participate therein.

 By notice dated November 25, 2003, Claimant was advised to attend a hearing in connection with the following charges:

A joint hearing was held on December 23, 2003, at which all five of the equipment operators charged in the November 19, 2003 collision were present, as was their Organization representative. Following the bearing, the Carrier determined that the Claimant was guilty of the charges. Claimant was issued a fiveday suspension.
 SBA No. 956 Award No. 149
 Page 2 Case No. 149

 The Organization does not dispute the fact that a collision occurred at the time and place set forth in the charge notice. Instead, it contends that there were several mitigating circumstances which should have been taken into consideration before assessing discipline.

 The Organization points out that the crew was working late at night on overtime to remove leaves from the tracks to assist the movement of passenger trains. The tracks at the site of the collision were on a curve and a downgrade and they were slippery that evening. Not all the 17 machines operating over the tracks had brake lights. In addition to the lack of visibility, the lead machine did not have a radio, and therefore the operators had no prior warning that machines ahead of them had derailed. The Organization further points out that there was a crossing 600 feet from the incident and the Claimant had stopped at that crossing before proceeding. There is no evidence that he was speeding and in fact he was not charged with operating the equipment at an excessive speed.



In the Organization's view, Claimant's testimony, together with all the extenuating factors involved in this collision, demonstrate that the discipline was excessive. Based on all the foregoing, the claim must be sustained in its entirety.

 Carrier contends that the charges were proven and the discipline was warranted based on the evidence adduced at the hearing. Carrier notes that there 17 machines on the tracks on the night of the collision. Twelve employees managed to stop without incident. The Carrier argues that the five employees charged in connection with the accident were responsible for their vehicles and it is clear that they were inattentive to safety. Carrier rejects the Organization's assertion that mitigating circumstances should reduce the penalty imposed. On the contrary, the Carrier asserts that the operating conditions should have alerted the Claimant to exercise greater caution. As an experienced operator, he knew or reasonably should have known that greater care should have been exercised based on the operating conditions at the time. The claim, therefore must be denied.
 SBA No. 956 Award No. 149
 Page 3 Case No. 149

 The Board has reviewed the record thoroughly. We find that the Claimant was afforded a fair and impartial investigation and that there were no procedural or due process defects in the handling of the case.

 On the merits, the Board is satisfied that substantial evidence exists in the record to support the Carrier's determination to impose discipline. Under the circumstances, and considering the conditions that existed, we cannot find fault with the Carrier's conclusion that Claimant failed to operate his equipment in a safe manner. The Claimant knew that there was another vehicle ahead of him on the tracks. He was on a slippery track where there was a curve and a downgrade, and visibility was extremely poor due to darkness. As Carrier witness Acconzo correctly stated at hearing, the Claimant should have been prepared to stop short of any obstruction that was ahead of him in light of these operating conditions. He failed to do so.




Employees are expected to exercise special care in adverse conditions. Carrier places great emphasis on safety and requires its track equipment operators to operate in a safe manner for existing conditions. The record in this case supports the Carrier's determination that Claimant failed to adhere to these fundamental safety tenets. In light of the above, we find that the penalty assessed was commensurate with the misconduct and that Carrier did not abuse its discretion in assessing a five-day suspension to the Claimant. Accordingly, the claim must be denied.
 SBA No. 956 Award No. 149
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                  Neutral Member


Carrier Member Agnes Duncan

 Dated this/-- day of 008.