PUBLIC LAW HOARD No. 4381: Case No. 1
BROISE14100D OF MUMENANCE OF WAY E74PIDYI3:S

 V.

 HURLINMCk1 NOON RAILROAD








At about 3:00 p.m., on August 7, 1985, the Claimant, Mr. Gregory Lewis, drove a scarfier on to a siding where it and other machines were to be parked. In the course of this maneuver, the machine operated by Mr. Lewis struck a machine that was stopped ahead of it. Subsequently, Mr. Lewis was charged with operating the machine in an unsafe manner and was disciplined with a fifteen (15) days suspension.

 'there is substantial evidence that supports the conclusion that Mr. Lewis did not operate the scarfier in a safe manner. Mr. ScnjU, the operator of the parked machine with which Mr. Lewis collided, testified:


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    "I never could get him to look around. His mine was facing the other way but he was riot looking back at the direction we were traveling until about the fifth or sixth time I hit the horn, and then he looked back and then tried to stop."

                                (Transcript, p. 8)

                                                q3$I--1


The testimony of Mr. Sonju was corroborated by another machine operator, Mr. Heck. He testified:

            "2. Q. And did you see Mr. Scnju trying to signal to Mr. Lewis that he was going to make a gyp?


        A. Yes, he was signalling while he was

        stopping.


            3. Q. And you say he was waving his hands trying to get Mr. Lewis' attention plus haking his horn?


        A. Yes."


There is no evidence that the brake system on Mr. Lewis' machine was not functiorang. adequately. Mr. Lewis testified that the brakes corn trolled his descent of a hill just prior to reaching the siding. Mr. hewis stated:

    "I feel that therefore, it was not a mechanical fail=, it was a situational problem that had occurred immediately prior to the accident."

                        (Transcript, p. 21)


    The "situatirnal problem" referred to by Mr. Iewis was a " %aet spoVI

caused by a water sprinkler. Mr. Lewis argues that due to the water, the
 machine's brakes did not grip and lock up. Mr. Lewis' argument is not
 persuasive. Other machines that passed through that area i.cediately
 ahead of Mr. Lewis were able to park without colliding. 'here is rb
 evidence that other madil-a cpexators experience reduced braking pa,~
 due to water on the track. Moreover, Mr. Lewis has not effectively
 rebutted the testimmyy that he was inattentive while moving his machine
 onto the siding.

 The record of this case indicates that Mr. Lens was provided a fair and impartial hearing. There is no basis fx~ which to conclude that the carrier discriminated against Mr. Lewis in the assignment of discipline.

 The Carrier has produced substantial evidence that Mr. Lewis was at fault and caused the accident through inattention and negligence in the performance of his duties.

                                            ~3~ I- i


    claim died. 100


              Ronald L. MLUer

              Qairman and Ncuiral Member


Maxim Timterman B13= G. Glover
 Carrier Member organizatiai Member