Parties
to the
Dispute
PUBLIC LAW BOARD NO. 5396
BROTHERHOOD OF MAINTENANCE
OF WAY EMPLOYES
and
SOUTHERN PACIFIC TRANSPORTATION
COMPANY
(Western Lines)
STATEMENT OF CLAIM
1. That the Carrier violated the current
Agreement when it dismissed Broom Operator
S.W. Chee. Said action being excessive,
unduly harsh and in abuse of discretion.
2. That the Carrier now reinstate Claimant
to his former Carrier position with senior
ity and all other rights restored unimpaired,
with pay for all loss suffered, and his
record cleared of all charges.
BINDINGS
PLB Case No. 2
NMB Case No. 2
On October 3, 1990, Claimant S.W. Chee was assigned as
a Broom Operator on Surfacing Gang 5-22 near Sacate, California. At approximately 12:40 PM, the Broom that he was
operating ran into a Ballast Regulator, causing $14,000-
2
53Rlo-~-
worth of damage to the two machines and injuring the Regulator Operator, A. Moreno.
At an investigation held on November 27, 1990, Claimant
alleged that because of grease on the rails, he was unable
to stop. Further, Mr. Moreno had halted his machine in
order to change gears and had failed to signal that. he was
doing so. Claimant was charged with the violation of
Southern Pacific Transportation Company,
Rules and Instructions for the Maintenance
of Way and Structures, Rule 2.13.3:
2.13.3 - Equipment shall not be
operated in a manner to endanger
life, limb or property. No equipment shall be set in motion until
it is known that the way is clear.
and Rule 2.13.32:
2.13.32 - Track machines must be
operated at a safe speed at all
times, subject to conditions,
especially on grades, both while
working and while running light.
While traveling, machines must be
separated from other machines in
such a way as to avoid any undesired
contact between any two machines.
and Safety Rule, Governing Employees of the Maintenance of Way and Structures Department, Safety
Rule 5031:
Rule 5031: Employes handling or
operating moving equipment must be
prepared to stop short of persons
or objects.
539(1-.2
Claimant was found guilty as charged and was terminated
from employment on December 7, 1990. (He has subsequently
been returned to service by Carrier.)
This Board has reviewed the entire record of the case,
including the
transcript of the investigation, and finds
that sufficient evidence was brought forth by Carrier to
support the charges against him. Claimant did operate in an
unsafe manner, given the condition of the track and the
terrain. We also find that he was granted all procedural
rights guaranteed by Agreement in the handling of his case.
Claimant's past record includes two prior safety violations, for which he received a ten-and thirty-day suspension. While we agree that he is deserving of discipline for
recurring safety violations, we too believe that final
separation from service is excessive. Thus, we endorse his
reinstatement to service, but without backpay.and on a last-
chance basis.
WARD
Claim sustained in part and denied
in part. Claimant's return to service is without backpay. His
seniority and other rights are restored.
He is returned on a last-chance basis.
C .H. Gold
N
utr 1 Cha an
21, i / /
C.F. Fo se, Employe Member J artin, Carrier Member
Date of Approval