PARTIES Brotherhood of Maintenance of Way Employes
 TO and
 DISPUTE Southern Pacific Transportation Company (Western
 Lines)
 r
 STATEMENT That the Carrier's decision to suspend
 OF CLAIM Claimant for a period of three (3) days was
 excessive, unduly harsh and in abuse of
 discretion, and in violation of the terms and
 provisions of the current Collective
 Bargaining Agreement.
 That because of the Carrier's failure to prove
 and support the charges by introduction of
 substantial bona fide evidence, that Carrier
 now be required to compensate Claimant for any
 and all-loss of earnings suffered, and that
 the charges be removed from his record.













upon entering a siding and the operator of the crane knocked
 over a dwarf signal. The operator was offered and accepted
 thirty (30) demerits and signed a waiver. The Claimant was
 offered, but rejected a waiver which would have given him a
 three (3) day suspension. He was susbsequently notified to
 appear for a formal hearing to be held at Dunsmuir, California
 on Friday, February 9, 1990, to determine whether he had
 violated Rules 1.1.30 and 1.1.31 of the Chief Engineers
 Instructions for the Maintenance of Way and Structures, those
 portions which read:
 Rule 1.1.30:

      Crane Operators shall only accept signals from those specifically designated and authorized to give same.


      They must not move loads unless they are sure that the way is clear. Employes must not go under load or boom except when necessary and must be clear when load is freed to avoid being caught between load and other object. Rule 1.1.31:

Employes handling or operating moving equipment must be prepared to stop short of persons or objects. On the day of the incident, the Claimant was driving a crane, while the operator of the crane was picking up scrap around the tracks by use of a magnet attached to the end of the boom. Near MP 218.5, they entered into a siding from the main line. A dwarf signal was located in the siding beyond the switch. After clearing the switch, the operator began swinging
 the magnet. He was on the opposite side of the dwarf signal and his vision was blocked by the boom. The only person who could

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see the dwarf signal was the driver, who could observe the structure through his rear view mirror. He was also able to see when the magnet approached the signal. Despite this, the driver did not signal the operator to center his boom, nor did he slow down or stop as he neared the signal. Either of the latter - actions would have indicated to the operator that they were approaching an obstacle. Without this indication from the driver, the operator continued swinging the magnet and dragged it over the dwarf signal, pulling it out of the ground. The total cost of the damage was $4000.00.
 In this matter, the Claimant would have the Board believe he should not be held responsible because the crane operator should have known where the dwarf signal was simply because he had been in and out of the siding many times. However, earlier in his testimony the Claimant explained that the direction of travel determined who was responsible for giving instructions and in this case it was his responsibility. Besides, unlike the operator, the driver's vision was not hampered and he was in a position to see ahead of time any obstacles. It was his obligation to signal the operator. He was also able to stop the vehicle short of the object, but chose not to do so.
 The Claimant also excuses his lack of actionby contending the operator had no reason to swing out the boom and use his magnet since there was no scrap in the area. But, there was no evidence presented to show an absence of scrap. And even if there was, the Claimant testified that he was able to see the boom of the crane. If he felt there was a problem using it in

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that 'area, he had the option of slowing down or stopping. Regardless, the absence of scrap would not excuse his failure to signal the operator.
 The Union raises the argument of disparate treatment since the operator was offered a waiver of thirty (30) demerits, while the Claimant was offered a waiver with a three (3) day suspension. There are cases when disparate treatment is sufficient cause to overturn penalties which are issued. It is questionable here, whether the penalties issued actually constitute disparate treatment. In the Board's view, the Claimant was in a better position to see obstacles and was in control of the forward motion of the vehicle. It was also a matter of past practice that the individual in the forward moving direction signaled the other employe of impending hazards. The Claimant failed to do this. Based on normal operating procedures it was his responsibility. Therefore, in this case, assessing different penalties to the two employes goes to who had the greater responsibility.

      Finally, the Board has considered whether or not the.

penalty assessed to the Claimant was appropriate in view of the
 rule violation and the Claimant's overall employment record.
 The Claimant has been issued demerits on two other occasions for
 damaging railroad property. Besides these instances, he has
 been counseled concerning other rule violations. Because of
 this the Board does not believe the discipline is excessive.
 The Claimant was afforded a full and fair hearing. The Carrier met its burden of proof and the penalty was reasonable.

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                          AWARD


The claim is denied.

                        G `- a


                            arol J. Zamperini

                            Neutral


Submitted:

 March 30, 1990
 Denver, Colorado

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