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SPECIAL BOARD OF ADJUSTMENT NO. 947
' Case No. 134
Award No. 134
Claimant: F. J. Tabaha
PARTIES Brotherhood of Maintenance of Way Employees
TO and
DISPUTE Southern Pacific Transportation Company
STATEMENT 1. That the Carrier's decision to suspend
OF CLAIM Claimant from its service for a period of
three (3) working days was excessive, unduly
harsh and in abuse of discretion and in
violation of the terms and provisions of the
Collective Bargaining Agreement.
2. 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 reinstate and compensate
Claimant for any and all loss of earnings
suffered, and that the charges be removed from
his record.
FINDINGS
Upon reviewing the 'record, as submitted, I find that the
Parties herein are Carrier and Employees within the meaning of
the Railway Labor Act, as amended, and that this Special Board of
Adjustment is duly constituted and has jurisdiction of the
Parties and the subject matter; with this arbitrator being sole
signatory.
By letter dated April 6, 1992, the Claimant was notified to
attend a formal Investigation to determine his responsibility, if
any, in connection with his alleged violation of the following
rules:
Rule 607: CONDUCT: Employees must not be:
1. Careless of the safety of themselves or others;
Rule 1.2.19.2: They will be held responsible for
the safety, care, maintenance and performance of
the machines to which they are assigned. An
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immediate report will be made to the proper
authority when a machine is out of service or not -
performing properly. If a safety device is not
operating properly the operator will take every
precaution for safety. If the machine cannot be
operated safely it will be removed from service
and reported to the work Equipment Supervisor and
District Engineer. They will be governed by
instructions of Work Equipment Supervisor or
roadway mechanics regarding the maintenance and
operation of machines.
On March 12, 1992, in the vicinity of Niles, California, the
Claimant was operating a spike driver machine. While operating
the hydraulically powered machine, he noticeda leak in the hose
connection. Since the hose contained about 1500 lbs pressure, it
was necessary to turn off the machine and depressurize the hose
by bleeding off some of the hydraulic fluid. Instead, the
Claimant attempted to tighten the connection without doing
either. He apparently twisted the fitting in the wrong direction
causing the leak to become larger. This, combined with the fact
there was still pressure in the hose caused the fitting to come
loose spraying fluid over the Claimant. In spite of the fact he
was wearing safety glasses, some of the fluid got into his eyes,
apparently from wiping his eyes with his sleeve.
After the incident, the Claimant went to the hospital to
have his eyes treated. According to his statement he missed work
the following week.
As the following excerpts from the transcript reveal, the
Claimant was familiar with and had operated other hydraulic spike
driver machines, although not the Fairmont he was operating on
March 12, 1992. Furthermore, his testimony reveals he was aware
he should have turned off the motor of the machine before he
attempted to make any repairs. According to his testimony:
Question: In other words, you are familiar with how to
operate a spike driver?
Answer: Not that'one, but the other spike driver, I
use to work with that one, but not the Fairmont, I
don't know much about that one.
Question: You worked other spike drivers?
Answer: Yes.
Question: Did they work on hydraulic also?
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Answer: Yes . . . . .
Question: Did you shut the machine off?
Answer: No, I didn't shut the machine off.
Question: Were you aware that you are suppose to turn
the machine off when operating it?
Answer: Yes, I guess I was in a hurry; I was too far
behind, trying to tighten it.
Question: Do you recall, and I know it has been
awhile, do you recall which way you attempted to
tighten it?
Answer: Yes, but I made a mistake and turned it the
wrong way, so it starts spraying a little more; that is
why it got on my face, and I took off my glasses; I was
wearing coveralls all the time, and I cleaned it with;
I didn't have any towel.
Admittedly, there may be some fault on the part of the
Carrier for not qualifying the Claimant on the Fairmont Spike
Driver machine. However, the mistakes the Claimant made cannot
be attributed to his unfamiliarity with this particular machine.
In fact, he failed to do things which would have been done on
almost any kind of motorized equipment, hydraulic or otherwise,
before attempting to make repairs. Namely, turn off the engine
or shut down the motor. The Claimant did not lack this
knowledge. Therefore, he must be held responsible for not taking
the appropriate actions 'of shutting down his machine and
depressurizing the unit. He also knew he was to report the
problems to the mechanic, but did not do so until after the
incident.
In this case the penalty as issued by the carrier is
reasonable under the circumstances.
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AWARD
The Claim is denied.
i
C ~o7 J. Zamperini
Neutral
Submitted:
July 21, 1992
Denver, Colorado
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