PARTIES Brotherhood of Maintenance of Way Employees
 TO and
 DISPUTE Southern Pacific Transportation Company

 STATEMENT 1. That the Carrier's decision to assess
 OF CLAIM Claimant a disciplinary Letter of Instruction
 was excessive, unduly harsh and in abuse of
 discretion and in violation of the terms and
 provisions of the current 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 remove the Letter
 of Instruction from Claimant's 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.

 The Carrier directed the Claimant by letter dated October 24, 1994, to attend a formal hearing at the Roadmaster's Office, 1585 Oak Street, Klamath Falls, Oregon, at 9:00- a.m., Tuesday, November 1, 1994. The purpose of the Investigation was to determine whether the Claimant, a Foreman, had violated the following Rules while he and co-workers were replacing a rail at MP 434.2 on the Modoc Line on October 13, 1994, by allegedly allowing a Welder's Helper, who was under his supervision, to position himself in such a way that he was struck by the rail causing a fracture to his right foot:

      Rule 1.1 Safety


          Safety is the most important element in performing duties.- Obeying the rules is essential to job safety and continued employment.

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                                                    W-p~o


          It is the responsibility of every employee to exercise-

          care to avoid injury to themselves or others. Working -

          safely is a condition of employment with the Company.

          The Company will not permit any employee to take an

          unnecessary risk in the performance of duty.


          No job is so important, no service so urgent, that we cannot take the time to perform all work safely.


      Rule 1.1.1 Maintaining a Safe Course


          In case of doubt or uncertainty, take the safe course.-


      Rule 1.1.2 Alert and Attentive


          Employes must be careful to prevent injuring themselves or others. They must be alert and attentive when performing their duties and plan their work to avoid injury.


      Rule 71.2.3.1


          Foremen. . .they are in charge of and are responsible for. . .the safe, proper and economical use of labor. .


      Rule 71.2.3.3


          Foremen must see that employees under them properly and safely perform their duties . . . .


      The Carrier reviewed the evidence adduced at hearing and

determined the-Claimant was guilty of the charges. He was issued -
 a Letter of Instruction with a copy placed in his Personal Record
 for future reference.

 There were two crews working together following a Rail Detector. They were responsible for removing and replacing defective rails. They had been working together for about one week and had replaced at least ten rails.

 The organization points out that the two crews worked together for some time. Each man knew his job and demonstrated safe work practices. The incident which happened on the day in question, from the Organization's perspective, can be blamed on an odd-ball truck. The control levers on the particular boom truck being used that day were reversed from the levers on all other Company Boom Trucks. In addition, the Organization argues that the Carrier failed to provide adequate training to employees

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who operated the different Boom Trucks- Therail had-already been placed when the Welder's Helper moved into__the inside of the
 track to get to the other end of the rail. He had waited until _
 it was safe. There was no reason for the Claimant to direct him _
 to position himself otherwise. The movement of the rail from the
 plates to the inside of the rail-instead of simply sliding
 forward, was totally unexpected and probably resultedfrom the
 operator pulling the wrong lever.

      The Organizatipn further urges that the Claimant had

informed his Roadmaster about the problems with the reversed _.
 controls, but nothing was done to correct, the problem.

      The Carrier argues the Claimant should have--been aware. that _

the Welder's Helper was putting himself in danger when he moved
 to the inside of the track. It was his. responsibility to direct
 the employee to move outside the track-until tl1ae_ track was. _.
 permanently placed and ready to be bolted.

 The Board, in reviewing the evidencepresented at hearing, finds the arguments raised by the Organization concerning the operating controls of the Boom Truck to. be particularly
 persuasive. If the controls on the truck were reversed., it is .,
 plausible that the operator could have inadvertently pulled the
 wrong lever which resulted in the rail swinging inwardrather
 than sliding toward the Foreman. In this scenario, it is
 understandable that the Welder's Helper, from his position,
 believed the rail had been stabilized a-ad was responding as he
 had all week.- Nevertheless, the Claimant was aware that the rail _
 was not completely in place and should have advised the Welder'_s _
 Helper accordingly. Rather than say nothing, the better choice
 would have been to have everyone stay Boom Truck _
 had completed the moves.

 Considering how serious the accident could have been given the Claimant's failure to provide adequate direction, the Letter
 of Instruction issued to the Claimant_waswar_ranted, _

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                                                        ~ -I~o


                              AWARD


      The claim is denied.


      Carol J. zamperini, Neutral Submitted:


      July 7, 1995

      Denver, Colorado


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