SPECIAL BOARD OF ADJUSTMENT NO. 956
BROTHERHOOD OF MAINTENANCE )
 OF WAY EMPLOYEES )
 and ) AWARD NO. 150
 CASE NO. 150
 NEW JERSEY TRANSIT RAIL )
 OPERATIONS, INC. )

 STATEMENT OF CLAIM:
Claim on behalf of B. BoAey, Class II Operator, for expungement of discipline assessed, payment for all time lost, and reimbursement for benefits lost during time withheld from service.

 FINDINGS:
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.

 Claimant entered Carrier's service on August 8, 2001. 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 hearing, the Carrier determined that the Claimant was guilty of the charges. Claimant was issued a fiveday suspension.
 SBA No. 956 Award No. 150
 Page 2 Case No. 150

 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.

 Moreover, the Organization contends that the Claimant was struck from behind and was pushed into the equipment ahead of him. Claimant Bogley testified at hearing that he applied his brakes when he saw the machine in front of him start to slow down., As he was doing so, the scarifier machine behind him pushed his equipment into the tie handler just ahead. Claimant maintains that the accident was unavoidable.

 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. 150
 Page 3 Case No. 150

 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 finding that the charges directed against the Claimant were proven. 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.

 The remaining question is whether the imposition of a five-day suspension was fair and reasonable. With regard to Claimant Baxley, we find that there were mitigating circumstances which serve to lessen his culpability in connection with this collision. Claimant's equipment was struck from behind and this caused his forward movement into the equipment ahead of him. The Board finds that the penalty should be reduced in light of those circumstances. Accordingly, the five-day suspension shall be converted to a five-day deferred suspension, to remain on the Claimant's record for a period of two years.






                  Neutral Member


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 Carrier Member Organization ember
 Agnes Duncan William Capik

 Dated this /"d'ay of W~, 2008.