. PUBLIC LAW BOARD NO. 1925



                                          M.S.File No. 76-29


Parties Brotherhood of Maintenance of Way Eaployes
 to and
 Dispute Southern Pacific Transportation Company
 Texas and Louisiana Lines

 Staternnt Claim of the System Committee of the Brotherhood that:
 of Claim: (1) The discipline of Welder Helper T. J. Alleman for alleged 'violation
 of Rules 801, 804, and M of General Notice, Form S-2292' was without
 just and sufficient cause and on the basis of unproven charges (System
 File NW-76-29).
 (2) Welder Helper T. J. Alleman be compensated for all wage loss suffered,
 including overtime from February 3, 1976, through May 29, 1976, both dates
 inclusive.

          Findings: The Board finds, after hearing upon the whole record and all evidence, 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 23, 1977, that it has jurisdiction of the parties and the subject matter, and that the parties were given due notice of the hearings held.


          Claimant, a Welder Helper. on the Lafayette Division, was working on the Main line on February 2, 1976, in the vicinity of Mile Post 187, under the immediate direction of Welder W. Johnson. in the process of welding to build up rail ends and grinding sate, a main line local freight, No. 58, struck and damaged the cross grinder and push cart being used in this work on February 2nd.


          As a result thereof, Claimant, for his failure to provide proper protection to the equipment, was dismissed from service February 5, 1976. He requested and was granted a hearing thereon. Carrier found that the hearing showed Claimant as being guilty as charged.


          Carrier offered on March 9, 1976, to reinstate Claimant on a leniency basis but such offer was refused. Carrier unilaterally reinstated Claimant to service on May 25, 1976.


          The Rules cited in Claimant's dismissal letter, in pertinent part, provide:

                                  PL r3 1qa?5


                  -2- Award No. 4


"801. Employes will not be retained in service who are careless of the safety of themselves or others, indifferent to duty,..."

 "804. Any ...wilful disregard or negligence...

 "M Employes must exercise care to avoid injury to themselves or others ...."

 "Carelessness by employes of the safety of tl"mselves or others will not be condoned ...."

 The Board finds that Claimant was, given a fair hearing. The presence of headend crew nxmiber was not necessary to prove that the cross grinder and the Nolan push car was struck. Claimant agreed that such equipment had been struck by train No. 58. Azeir presence as a part of the Employee's defense rested with Claimant's obligation to request their presence. 5heir absence provides no cause for reversal here.

 The evidence adduced was sufficient to warrant and support the conclusion that discipline was warranted Claimant Welder Helper for his failure on February 2, 1976. The record reflects that Claimant had a view one half mile east and west on the curve where the madiine eras working. Carrier concluded that Claimant's terse i&rning, "Watch it, Johnson, there's a train" was an untimely notice reflecting that he had not been alert and on the lookout for oncoming trains. Claimant testified that 4 to 6 trains in either direction passed by daily and that he never encountered difficulty before and that he was within view of a signal which according to him did not light up. This provided basis for the inference that absent evidence to the caatrary, Claimant was not alert to '-,he possibility of oncoming trains.

 mere are mitigating circumstances concerning the discipline assessed. The record reflected that Welder W. Johnson, Claimant's immediate supervisor, received 45 demerits for his failure to obtain a proper line up
 of trains on February 2, 1976. Such failure by the Welder created an _
 undue degree of responsibility for the Claimant to assume. In assessing
 discipline, Carrier dismissed Claimant while only assessing 45 demerits
 to the Welder. Yet, Carrier was willing to reinstate Clainant without pay
 within a month of his dismissal, and after such offer was refused, Car
 rier unilaterally reinstated Claimant on May 29, 1976. The majority of
 the Board finds the discipline to be disproportionate and arbitrary and
 PL e lqa5
 Award No. 4

 and it reduces same. Therefore, Clair=t's discipline, in the circmtstances herein, sknuld have been suspension from February 2, 1976 to April 2, 1976. His service record is to be adjusted accorclingly and paid the difference in earrings lost thereby.

 Award: Disposed of per findings.

 Order:

 Carrier is directed to make this Award effective within thirty (30)
 days of date of issuance shown below. f""l,_

 A.' Cunningham, ErnpJ-oyee Mercer

      Arthur T. Van Wart, Chairman and Neutral Msaber


                    Issued at Falmouth, Massachusetts, September 7, 1977.


R. W. Hi. anan, Carrier Meatier