Findings: 7he Hoard, after hearing upon the whole record and all evidence, finds that the parties herein are Carrier and Employee within? the meaning of the Railway Labor Act, as amended, that this Board is duly constituted by Agreement dated March 16, 1982, that it has jurisdiction of the parties and the subject matter, and that the parties were given due notice of the hearing held.

Claimant Hale, vhio, at the time of this incident giving rise to the instant claim, had prior service with the Milwaukee Railroad, was a relatively new employee at Carrier's Tuna, Washington switching facilities. On Gctober 12, 1980, Claimant was working as Forman cm the 8 M1 West Lead Yard assignment.

At approximately 1:30 PM Claimant's crew placed an empty Chip car, HN585340, on the west end of Track No. 29. The crew's next move was to shove a cut of four cars into Track No. 41. BN585340, hawsrx, was not placed or, Track No. 29 to clear the lead switch, resulting in BN585340 being sideswiped by four cars being shoved into Track No. 41. 2tu of

the cars contained hazardous material (chlorine gas and caustic nodal . No spillage of lading occurred and a near-catastrophe was averted.

Claimant received notification to attend an investigation on October 16,1980, resulting in a detenaination that Claimant was in violation of Rules 808 and 808tE) of Consolidated Code of Cjperating Rules as well as Item 7 of Special Instructions No. 3. Rhe applicable schedule rules, in pertinent part, read:

808. Employees perfotming switching rust do so efficiently and in a manner which will avoid personal injury, damage to contents of cars, equipment, structures or other property.

808 (E) . When switchUng or placing cars, .they mast be left where they will fully clear passing cars on adjacent tracks and where they will not cause injury to eMloyees riding on the side of cars.

7. Hazardous Materials

Holders of the Consolidated Code of Operating Rules mist have HN Foxm 15784, °harcling Placarded Cars In Railroad Transportation," in their possession and be familiar with its contents.

All carloads of chlorine and anhydrous mmania must not be cut off Utile in motion and no carts) moving under its ohm mmnentuni shall be allowed to strike these cars, nor shall such cars be coupled to with more force than is necessary to complete the coupling. Employees rust be informed of the presence of these cars and instructed to handle then in accordance with the above reTuirenients.

.Organization seeks to convince the Hoard on appeal, that Claimant complied with the mandates of the rules and special instructions, arguing that Carrier failed to make a convincing case.

However, a fair reading of the transcript fails to convince the Board of an' thing more than Claimant ((ale's testimony that he was in a position approximately 1 to 2 car lengths away fro- M585340, knew that he was handling hazardous material, had a clear opportunity to observe

_3_

clearance points, and began a shave without properly determining that the move could be made safely. in fact, the more was not new safely, a catastrophe of enormous proportions was narrowly avoided and Claimant

was assessed 30 days.

Carrier argues to the Board that the 30-day assessment, in the citanaes of this instance, was a moderate measure of discipline and ariate for the seriousness of the consequerce that might of occurred given the locale of the yard and the substances involved.

Organization responds to the issue of measure of discipline by pointing to Award 15, Case 15, of Public Law Hoard No. 24 (Weston) where the Neutral denied the claim of a Yardperson who was found responsible for a sideswipe involving 2 cars, case of chlorine and one of caustic soda. In that case Carrier imposed a 5-day suspension which was upheld by the reviewing authority.

In the circumstances cf this case, a collision occurred involving chlorine gas and caustic soda. Claimant, an experienced railroader (although of short duration on this property) who had an othexxdse clean record, was found to be culpable for the sideswipe. While we agreE witt. Carrier that a catastrophe was narrowly avoided, the point of the exercise was to assure cmpliance with the rules. Organization is arguing disparate discipline in that carrier in one instance imposed a 5-day suspension and in this instance arbitrarily imposed a 30-day suspension. We fine: rote in the record that would distinguish the two cases. Are we to assume that there is one measure of discipline in the event that rules arse violated in a heavily populated area, but another standard of discipline in the event that rules are violated in a

mare rural. or remote area? Clearly, that is not the intent of the

PLB No. 3193
Award No. 8

exercise of unifam and fair discipline. Accordingly, we are permuded that absent distinguishing factors, that the discipline in this case should be modified to a 5-day suspension, Claimant be made whole four the difference in time, and his record so adjusted. We do not address the myxiad of awards offered by Organization as further support for its tent as they involve actions taken to adjust discipline for the reasons found therein to he appropriate by the reviewing authority as distinguished from the levy of discipline made by the Carrier involving the same or similar circumstances which was upheld by the Board.

AWAW: Claim sustained as per findings.

Carrier is directed to make this Award effective within thirty (301 days of date of issuance shown below.

W. A. Bell, Carrier Member

D. E. Wegler, I?ffee Member

A. 2hcv'ciiS Van Wart, CTU-Mmkm

and Neutral member