Brotherhood of MAintenance of Way Employees


Chicago and North Western Transportation Company

 O F AIM:

 "Claim of the System tkrmmittes of the Brotherhood that:



paid for

 OPI~IIGIi OF BGARD s

 wage loss_ all in aarardancse with Rule 19(d).·,

 Claimant was operating s Torsion Beam Tamper~as part of a high speed surfacing crew on September 21, 1977. The gang eras tying up far the evening in a siding at Fiaugent ~.scansin. This siding was an a downgrade of some thirty inches and there were high grass and weeds growing aver the rails. A Flasssr ballast regulatory under the operation of Mr. Jeff Stafford,, preceded Claimant into the siding. Stafford had difficulty stopping his machine due to the downgrade and the lubricating affect of the weeds being crushed under the wheels of the machinery. Track Foreman H. J* Viehrnek observed that difficulty of the ballast regulator in stopping and tried to signal Claimant to apply his brakes early as he came darn the siding.
 In the meantime Claimant had entered the siding, come to a complete stop same 200 feet behind the ballast regulator., lined and spiked the switch,
 and proceeded do the siding. He testified t the track felt espi

 into rever see t it continued to slide until it struck they ballast regulator.
 Later inspection revealed that the tamper slid some 1 feet with the brakes on

 before striking the regulator. As a result of the collision bath machines tare
 ed at an estimated cost of $3., 200.
 Carrier served (.aimaut and Foreman Viehrack with a 2btice to attend
 an investigation into the falls charges

apPta3Y 3:45 P.m." Following the investigation Carrier found that Claimant alone was responsible for the collision .d demoted him .fps Machine Operator "All to Laborer.
ficient specificity in the Mice of Investigation. But ors do find merit In
 the Organization's position that Carrier has failed to fix culpability far the
 collision upon Claimant so to warrant his discipline. 'the crux of Carrier's
 case is that Claimant was negligently his machine at a rats of speed
 too fast .for the conditions. The evidence of retard does not persuasively establish
 that central. fact. Every witness who was present at the scene testified that the
 downgrade and the crushed weeds created a difficult stopping situation. Both
 Claimant and his supervisor testified that under normal conditions the taper
 should and would have stopped far short of the collision point. Claimant did
 testis that he had entered that particular siding on other occasions end was
 aware as d cover. t there is showing what distance it k him to
s on those earlier occasions r r whether nsc ery had preceded hinto tie siding. :t, n accused employee does not have to prove his

 ream machine operator in hi:3 place could have done to s his me
imprudent speed prior to taking. Indeed sae must douse the Organization's conclusion that ante he started daze that downgrade the collision was virtually unavoidable given the conditions of the track and he logistics of the machinery. that'tasis we must conclude that Claimant was wrongfully disciplined tend we shall sustai.n this claim.

 Public Law r. 184~,, upon the whole record and all of the
 evidence,. finds s and holds as followst

 1. That -tee Carrier d piay~ee in'7olved in .s dispute , res
 pectively,, Carrier sued ace . ithe caning of the Railway r Act;
 that the Board has jurisdiction over the dispute involved herein;
Claim stained. Chrrier is directed to comply 'with this Away within thirty days of issuance.

 Datedt

 Dana F. Eiachen., Ch-airman?

 H. G. Harper, flay MemberR. W. Sch.ege$ Carrier Memb