(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (The Denver and Rio Grande Western Railroad Company

(1) The dismissal of Work Equipment Operator D. R. Lawyer and the discipline (sixty demerits) imposed upon Track Liner Operator E. G. Chavez for alleged responsibility in connection with '...collision between Ballast Equalizer BE-3, Track Liner ... personal injury to E. G. Chavez on October 30, 1984 ....' was arbitrary, capricious, without just and sufficient cause and in violation of the Agreement (System Files D-64-84/MW4-85 and D-65-84/MW-5-85)
(2) Claimant D. R. Lawyer shall be reinstated with all seniority and rights unimpaired and he shall be compensated for all wage loss suffered in accordance with Rule 28.

 (3) Claimant E. G. Chavez' record shall be cleared of the charge leveled against him and the sixty (60) demerits imposed upon him shall be removed from his record in
OPINION OF BOARD: At the time of the incident, Claimant Lawyer was an Equip
 ment Operator and was in the Carrier's service since May 5,
 1981. Claimant Chavez was a Track Liner Operator/Extra Gang Laborer and was
 in the Carrier's service since May 19, 1981. Both were assigned to section
 forces headquarters at Pinecliff, Colorado. As a result of a collision on
 October 30, 1984, charges dated November 1, 1984, Investigation held November
 6, 1984, and letters dated November 12, 1984, Claimant Lawyer was dismissed
 from service and Claimant Chavez was assessed 60 demerits for their responsibi
 lity in connection with that collision.

 The record discloses that on October 30, 1984, Claimant Lawyer, while operating a ballast equalizer, followed Claimant Chavez into a 1000 foot tunnel (Tunnel 16). At the towing buggies. While in the tunnel, the ballast equalizer collided with the moving track liner. A motor car operated by Track Patrolman S. P. Schoening then collided with the ballast equalizer. The collision destroyed the buggies, damaged the track lin Chavez.

 With respect to Claimant Lawyer, we are satisfied that substantial evidence exists in the record to support the Carrier's determination to impose
                      Award Number 26532 Page 2

                      Docket Number MW-26927


discipline. Under the circumstances, and considering the conditions that
 existed, we cannot find fault with the Carrier's determination that Claimant
 Lawyer should have operated the ballast equalizer at a reduced speed in the
 tunnel so as to permit adequate distance for stopping. Claimant Lawyer knew
 that Claimant Chavez was ahead of him with the track liner. The tunnel was on
 an approximate 12 degree curve and, according to Claimant Lawyer, was "real
 steep." Claimant Lawyer testified that he followed Claimant Chavez into the
 tunnel but could not see Claimant Chavez ahead of him. Further, by Claimant
 Lawyer's own estimate, he was going approximately 15 miles per hour and it
 would have taken a distance of five to seven rail lengths to stop his equip
 ment while he could only see at a distance of two rail lengths ahead. Thus,
 Claimant Lawyer was traveling faster than his ability to see and stop.

 The fact that Claimant Chavez was operating the track liner without headlights does not change the result. The record reflects that Claimant Chavez thought he informed Claimant Lawyer that the headlights were not working on the track liner. liner and the record satisfies us that the operation of the headlights on the track liner had no effect on avoidance of the collision which occurred as a result of Claimant Lawyer's excess speed for the condition of the terrain. Nor would the fact that the Track Patrolman was not disciplined even though his motor car collided with the ballast equalizer after it collided with the track liner require a different result. The record reflects that the motor car was proceeding slowly at five miles per hour or less and had more than adequate stopping distance between it and the ballast equalizer (three to four rail lengths). The motor car slid and lost friction and was unable to stop after passing over hydraulic fluid that spilled onto the tracks as a result of the collision caused by Claimant Lawyer on the ballast equalizer. Therefore, we can find no disparate treatment in the failure to discipline the Track Patrolman.

 Rule M requires employees to expect the movement of equipment and to take every precaution to prevent injury. Rule 405 requires employees to expect to find the track in striking other track cars. Similarly, Rule 415 requires special care be exercised in adverse conditi speeds for existing conditions. The record thus supports the Carrier's determination that these rule the above, we do not believe under the circumstances that the Carrier's action of assessing dismissal was either arbitrary or capricious.

 However, we do not find substantial evidence in the record to support the decision to impose discipline upon Claimant Chavez. He was operating in the tunnel at a cautious speed when he was struck by Claimant Lawyer. The Carrier asserts that some fault should be placed upon Claimant Chavez because he was operating without lights. However, the record shows that he reported the problem with the lights to his Supervisor prior to the collision and the record further reflects that he was denied permission to get a part to repair the lights. In any event, as we have found above, the record satisfies us that the lack of lights on the track liner was not the cause of the collision, but the collision was attributable to the speed of the ballast equalizer under the given conditions. There is no evidence that Claimant Chavez was in any fashion culpable for the collision. Therefore, we shall require that Claimant Chavez' record be cleared of the demerits assessed.
                      Award Number 26532 page 3

                      Docket Number NW-26927


        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

 That the Agreement was not violated with respect to Claimant Lawyer but was violated with respect to Claimant Chavez.

                        A W A R D


        Claim sustained in accordance with the Opinion.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


Attest:
      Nancy J. ,Wr - Executive Secretary


Dated at Chicago, Illinois this 30th day of September 1987.