F





                ( BROTHERHOOD OF MAINTENANCE

                ( OF WAY EMPLOYES


    (

    Parties to Dispute: ( -and

    (

    (

    ( BURLINGTON NORTHERN SANTA FE RAILWAY


    Statement of Claim: . 1. That the Carrier's decision to assess Claimant twenty

    (20) demerits after the Investigation held July 9, 1997

    was unjust.

    2. That the Carrier now expunge the twenty (20) demerits

    from Claimant's record, reimbursing him for all wage

    loss and expenses incurred as a result of attending the

    Investigation July 9, 1997, because a review of the

    Investigation's transcript reveals that substantial evidence

    was not introduced that indicates the Claimant is guilty

    of violation of rules he was charged with in the Notice of

    Investigation.

    INTRODUCTION

    This Board is duly constituted by agreement of the parties dated January 21, 1987, as amended, and as further provided in Section 3, Second of the Railway Labor Act ("Act"), 45 U.S.C. Section 153, Second. This matter came on for consideration before the Board pursuant to the expedited procedure for submission of disputes between the parties. The

                                Public Law Board No. 4244

                                Award No. 220

                                Case No. 229

                                File Nos. 13-121/31-36; 180-1313-977


Board, after hearing and upon review of the entire record, finds that the parties involved in this dispute are a Carrier and employee representative ("Organization") within the meaning of the Act, as amended.

                        FINDINGS

Claimant Eliser Quinones, an equipment operator for the Los Angeles Junction Railway, discovered on the morning of June 17, 1997, that the right hand brake on a tie tamper was not working properly. The claimant, an eighteen-year employee, is listed on the seniority roster as a trackman and welder, but was designated by mutual agreement of the parties as a garage mechanic assigned to work on the Maintenance of Way Department equipment. The claimant received some on-the-job training, but was offered no formal instruction or training on railroad equipment upon his designation as garage mechanic. This on-the-job training included work on the tamper such as changing brake shoes, and repairs to the back hoe, front end loader, trucks, vans and automobiles. As a general rule, if the mechanical repair required skills or knowledge beyond the garage mechanic's capabilities, the task in question would be performed by the equipment manufacturer or one of the Carrier's suppliers.
 The claimant brought the malfunctioning right front brake cylinder on the tie tamper to the attention of the general maintenance foreman, Carl White. White knew claimant was going to check the tamper, and both were aware the brake cylinder was under pressure. The claimant began work on the brake cylinder after releasing the air brakes, and stated he

                            2

                                Public Law Board No. 4244

                                Award No. 220

                                Case No. 229

                                File Nos. 13-121/31-36; 180-1313-977


observed no immediate signs of pressure. However, claimant's testimony contradicts his assertions that no pressure was observable.

      Q. Did you at any time, when you were releasing the bolts, notice that any

      of them were difficult to take out or if there could have been any pressure

      behind it?


      A. No. The housing had about ten-bolts. Underneath it, it got two big

      bolt. [sic] When I saw the big bolt on the bottom of the housing it had a lot

      of pressure in it. So I started unbolting the housing with the little bolt.

      (Tr. 32). (underlining supplied).


The claimant was about to remove the last bolt from the housing around the brake cylinder when the pressure caused the housing to break away resulting in an injury to one of claimant's fingers on his left hand. The Board finds that the Carrier left it to the discretion of the claimant and his foreman whether to proceed with work on a particular piece of equipment, or whether the task was beyond their skills and available tools to perform the job safely. In this respect, the initial decision for the claimant to work on the tie tamper cannot be faulted. However, as evident from the testimony, the claimant became aware in the process of the repair work that contrary to his initial assessment and efforts to release the air lines, significant pressure was present. Claimant further admitted that he had never performed this particular repair before, including removal of the bolts from the brake cylinder housing. In proceeding to unbolt the housing under these circumstances, the claimant acted in an unsafe manner. As a result of the formal investigation, the Carrier assessed a twenty (20) demerit penalty based upon the conclusion that claimant violated numerous rules, including General

                            3

· Public Law Board No. 4244
 Award No. 220
 Case No. 229
 File Nos. 13-121/31-36; 180-1313-977
 Rule C, J, 1, 24, 41, and 54, and General Safety Rules 1, 2, 3, 4 and 5 -- the identical rules
 cited in the notice of investigation. The Board finds no evidence, however, that claimant
 violated General Rule 54 in that claimant knowingly complied with a request to use defective
 machinery. Further, there is no proof that he failed to make the necessary accident report on
 Form 1421 as required by General Safety Rule 9. Accordingly, the Board modifies the
 penalty assessed to ten demerits.
 AWARD
    The claim is sustained, in part. Claimant's personal record shall be assessed ten (10) demerits for the incident of June 17, 1997.


-Z I -Zj LL
 homas M. Rohling, C Member Richard B. Wehrli, Employee Member

k" - Vj- - - -


dnathan 1. Klein, Neutral Member

 This Award issued the 7 ,4' day of ~, 1998.

 4