Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8954
 SECOND DIVISION Docket No. 9129
 2 -EJ&E-CM-' 82
 The Second Division consisted of the regular members and in
 addition Referee Edward L. Suntrup when award was rendered.
 ( Brotherhood Railway Carmen of the United States
 Parties to Dispute: ( and Canada


Dispute: Claim of Employes:











Findings:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Claimant, P. J. Gomez had been a bid Holmes Mobile Crane and Derrick Engineer Operator for the Elgin, Joliet and Eastern Railway Company for approximately 3-4 years prior to the incident which led to his thirty (30) day suspension, and his disqualification as an Operator, by this Carrier. The incident in question took place on June 4, 1980. On that day, at approximately 1:35 P.M. the Claimant: was instructed by his supervisor, Mr. M. Kranz, to finish the work he was then doing with crane No. 225 in order to have it on track No. 18 facing east by 2:30 P.M. so that the crane could be moved from Joliet, Illinois to Gary, Indiana. In the process of doing this Claimant damaged the boom of the crane at approximately 1:50 P.M.

 After a hearing on this incident was held on June 10, 1980 Mr. Gomez received the discipline noted above. He did so because the crane was damaged.
 Award No. 8954

Docket No. 9129

2-EJ&E-CM-'82


't`he crane was damaged because accepted safety procedures of the Carrier were not followed. This was admitted by both Carrier and Organization. The sole issue of substance to be resolved in this case, therefore, is whether Mr. Gomez was unilaterally liable for breaking the Carrier's Safety Rule No. 14-5 which, in turn, created the condition for the crane's damage, or whether the Carrier is also liable for some of the blame.

 Safety Rule No. 145 states:

 "Operator must test operation of limit switch by raising hoist until switch operates and must test brakes at beginning of each turn. If found to be inoperative, it must not be used. Report the condition to the Foreman immediately."

 In fact, however, the limit switch of crane No. 225 was not working on the day of the accident, nor had it been working, by admission of both parties, for some time prior to this. Nor is it sufficient for Carrier to contend that Safety Rule No. 145 really means that the safety switch itself should not he used if ound inoperative. This effectively would put the operator in the position of having to substitute personal judgment for a manufacturer's specified safety switch on a piece of equipment. On the other hand, it was the obligation of the Claimant not to have operated equipment which, by experience, he must have known to be potentially liable to damage without an operable limit switch.

 The thirty (30) day suspension received by Mx. Gomez from June 23 to July 22, 1980 inclusive was, in fact, a suspension of 22 work days. Given the circumstances of this case, the Board finds this suspension excessive and directs the Carrier to make Mr. Gomez whole for five (5) of the twenty-two (22) work days he was suspended i.e., full pay less any amount earned in other employement and/or received by means of statutory unemployment benefits. The Board also orders the requalification of Mr. Gomez. Mr. Gomez gives indication that he can operate equilment competently and safely when the Carrier provides such; but in the circumstances covering this case it did not do so.

 A W A R D

 Claim sustained to the extent indicated in the Findings.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 osemarie Brascli - Administrative Assistant

 Dated at Chicago, Illinois, this 3rd day of March, 1982