File No. 8600496


Parties Brotherhood of Maintenance of Way Employees
 to and
 Dispute Union Pacific Railroad Company
 (Former Missouri Pacific Railroad Company)

 Statement
 of Claim: (1) Carrier violated the current working Agreement,
 especially Rule 12, when Track Machine Operator T. E. Moore,
 SSN: 451-27-0896, was assessed a sixty (60) day actual
 suspension following a formal disciplinary investigation held
 on September 8, 1986.

        (2) Claimant Moore shall now be allowed eight (8) hours pay for each work day, including any holidays, for the sixty days actual suspension assessed.


Findings: The Board has jurisdiction by reason of the parties
 Agreement establishing this Board.
 Claimant, on May 13, 1986, was working and operating
 Roadway machine BDC-28. He operated it in transit from the
 vicinity of Willis point, enroute to Mesquite, Texas. The
 Claimant's machine was in the middle of a convoy with the
 machine DBS-2 in the lead and machine ATP-142 in the rear.
 The Claimant's machine was radio equipped. Because he had
 the communication capability the Claimant arranged for track
 and time from the Train Dispatcher from Willis Point to
 Lawrence, Texas. He shared responsibility for the movement
 with the Foreman of Gang 5475, R. D. Boger. Claimant was
 responsible for the safe movement of the lead machine, DBS
 2, and his own machine, BBC-28, while the Foreman took
 responsibility for machine ATP-142.
 Said convoy encountered several grade crossings while
 passing through the town of Terrell, Texas. Machine DBS-2
 and BOC-28 stayed within a couple of hundred yards of each
 other. However, Machine ATP-142 lagged behind some 3/4 of a
 mile. The Trackman attached to the convoy hopscotched from
 crossing to crossing in order to attempt to flag the
 crossings.
 The machines under Claimant's responsibility, i.e.,
 DBS-2 and his own BDC-28, out ran such flag protection at
 the Hattie Street crossing. Machine DBS-2 proceeded across
 the Hattie Street crossing without incident. Claimant's
 machine, moving about 4-5 miles per hour in a westward
 direction, was approximately 6.poles back. A 1979 Mercury
                  -2- Award No. 318


Capri entered the grade crossing a moment or two prior to Claimant's machine entering and a collision occurred therewith at approximately 2:24 PM. The driver of the car told Claimant and the Foreman, as well as the Terrell police officers who arrived on the scene, that he was in a hurry and tried to beat the Roadway machine to the crossing.

 As a result of the incident, a formal investigation was formally held on September 8, 1986 on the charge:

 "The alleged report that you failed to properly flag crossing at Hattie Street, Terrell, Texas which resulted in a collision with vehicle ...."

 The Carrier concluded therefrom that Claimant failed to operate the roadway machine in conformity with the rules, and that he was responsible for the collision between machine BBC-28 and the automobile at the Hattie Street crossing on May 13, 1986. The Claimant was given a 60 day actual suspension on September 16, 1986.

 Claimant was accorded the due process to which entitled under Rule 12.

 There was sufficient evidence adduced to support Carrier's conclusion as to Claimant's culpability.

 The discipline imposed as between Road Foreman Boger and the Claimant differed. However, such difference reflected a proper application of a policy of fair and reasonable discipline. As pointed out by Judge Johnson in Third Division Award No. 9637:

 "It has been held by this division that discipline cannot be measured on a statistical basis in comparison with other infractions. Awards 1310 and 9034. This is necessarily so since each case must be decided on its own facts. While it was held in Award 177 that the measure of discipline imposed in similar violations is one factor to be considered in determining whether the discipline in any particular case was reasonable. Yet that consideration cannot be the sole criterion, as assumed by the Claimant."

 The degree of discipline to be imposed involves a complex determination. The factors generally considered, but which are not limited to, are who was primarily at fault, an employee's length of service, a good or bad prior discipline record, the relationship thereof to the incident for which discipline is being imposed, the candor of the
 witness.,
 No. 318

 The factors involving Foreman Boger clearly are different than those involving Claimant. Claimant, clearly, was responsible for his own machine. He did admit that he was aware that flag protection was not at the Hattie Street crossing. The improper actions of the automobile driver did not serve to exculpate the Claimant. The Claimant had an obligation to.comply with Carrier's rules governing the operation of the motor cars and see that the machines were properly protected by flag protection.

 In the circumstances, the discipline imposed is deemed reasonable. This claim will be denied.

 Award: Claim denied.

 Ha ons, Jr., Fmp ee Member

 ~0

 Shannon, Carrier Member

Arthur T. Van Wart, Chairman

and Neutral Member


Issued June 13, 1989.