PARTIES) UNION PACIFIC RAILROAD COMPANY
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

 STATEMENT OF CLAIM:

 (1) The fifteen (15) day suspension assessed B&B Foreman W. L.
 Kernan for alleged violation of various -company rules as indicated
 in G. Edwards' letter of January 15, 1992_, is arbitrary, capricious
 and unwarranted.

 (2) In light of (1) above, the claimant's record must be cleared _
 of the discipline referred to above, and he must be reimbursed for
 all time lost.

 FINDINGS: This Public-Law Board No. 4338 finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended, and that this Board has jurisdiction.

 In this dispute the claimant was charged with allowing a hand pushcart to foul the track which was subsequently hit by Southern-PacificUnit No. 2618, indicating a possible violation of Rules A, I, K, lOF and 99E of tote current BMWE Rule-Book.

The claimant was notified to attend an investigation in Portland,
 Oregon on December 4, 1991. Pursuant to the investigation claimant -
 was assessed 15 days actual suspension. The Union filed a claim in -
 behalf of Claimant W. L. Kernan which is now__before the System Board
 of Adjustment for a decision. --

 The Board has carefully examined the 68 pages contained in the transcript and the exhibits which were submitted by the parties.

 Special Agent Tom Morrison testifi_ed,he was called by Bridge and Building Foreman Wayne Kernan to meet him at the Steel Bridge. Mr. Morrison read his statement into the record wherein he stated he talked to claimant Kernan who said he thought kids or transients put the rail cart back on the tracks.

 Agent Morrison further stated that after interviewing the crew, he
 determined that claimant Foreman Kernan and his crew forgot to take
 the cart off the track when they went below the main line onto the
 bridge pier. Mr. Morrison also testified that Foreman Kernan stated
 he assumed one of his crewmembers had removed the cart from the
 track. -- _ _-

 Agent Morrison testified that when _the Southern Pacific unit struck _ the push cart, there was resulting damage of approximately $350.00 to the push cart.
                                          LP338

                                          Award No. 56

                                          Page 2


J. M. Jessen, Manager of Bridge Maintenance, Engineering Services, testified that the claimant had given the tracks back for service and had neglected to remove the push cart from the track. This witness also testified-it-was the claimant's responsibility to protect all bridge work; track protection was part-of his foreman duties.

 Mr. Jessen conceded the claimant was working with two men less than
 normal on the date in question but stated this should not have been
 a problem in providing protection. lie further testified that if
 the contractor needed assistance, the claimant was to provide that
 assistance. -

 The Union- pointed out that since the claimant was short of employees T on his crew, he would not have begin able to assist the contractor and have a flagman on both ends.

 Witness Jessen testified that if the claimant was unable to control
 traffic with the Bridge Tender, he should have flagged it. He also
 testified the claimant stated to him that he "assumed that it was
 cleared and did not look or ask any-other-gang _member before he gave -
 the track back." --- -

 G. G. Perrenoid, Bridge and Building Carpenter, testified he was assigned to duties under the jurisdiction of the claimant while on duty. He testified that it was necessary for him to remove the cart from the track and later return the cart to the track.

 The claimant testified he instructed Greg Perrenoid to take the cart off the track after the old shaft was loaded on the cart.- He stated he gave the bridge back to Chuck, the Drawbridge Operator. Claimant Ifernan also testified he did not, know why the tool cart was on the track.

 The claimant stated that when he heard the rattle of the tool cart being struck by the train, his first thought was that some people had put that cart back on the track. He testified he could not believe his crew had left it there. The claimant concluded-by - stating he still could not believe -they had left the cart 6n the track.

 After reviewing all of the testimony and evidence, the Board finds -
 that Mr. Perrenoid returned the cart to the location where it was
 struck by the Southern Pacific transfer. The evidence is suffic-----
 ient for the Carrier to determine that the claimant instructed Mr. -
 Perrenoid to take the old shaft to the shop and return with the new
 one. -

 The Carrier was also justified in reaching a determination that the claimant would have been aware that Mr. perrenoid would have to return to the same location with the cart and new shaft.
                                          ~P33°

                                          Award No. 56

                                          Page 3


The Carrier is further justified in determining that the claimant did not provide the necessary protection. Under the circumstances the evidence is insufficient to overrule the decision of the Carrier.

 AWARD: Claim denied.

                                Preston J-/Moore, Chairman


                                  '_ n Me ner


                                Carrier Member