Claimant: J. Villalovoz


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 five (5) working day suspension
 without pay 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 substantialbona 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.

 The Claimant, a Welder's Helper, went on duty at 7:00 a.m., February 27, 1995, at Oakland, California. He-was; assigned to accompany a Welder out to the Hayward Line and assist in replacing two rails which were wlieel-burned-. The process involved removing a section of rail and welding in another piece. An employee, other than he or the Welder cut the rail. He and the Welder were to do the welding using the Orgo-Thermit Welding procedure. Testimony indicated that both the Claimant and the Welder wore goggles, butneither wore face shields. while the two men were cutting the excess weld-, a piece of slag struck the Welder on the lip. The resulting laceration required five (5) stitches. Because the two Employees were notwearing face
 shields they were charged with possible violations of the following Rules from the Chief Engineer's Instructions for the Maintenance of Way and Engineering, effective-April 10, 1994:

      72.17.18 Procedure For Boutet Welding: -


      27 Both welder and helper must wear goggles and faceshield

          (sic) cutting with hot-cut- chisel. _


      18.1 Use of Protective Equipment


          Only personal protective equipment, approved by the Safety Department, will be used while on duty. All protective equipment and clothing furnished by the Company must be used only for the purpose intended. Such equipment must be used where conditions of the job require, and in accordance with rules, and instruction, or directions from supervisor.


          Employees are responsible for keeping all protective equipment issued to them ingoodor_der, properly fitted

          and replaced as may be required to maintain intended _

          protection.


The Claimant was advised to-appear at a formal-Investigation to be held at the Roadmaster's Office, 1912 - 7th Street, Oakland, California, at 9:00 a.m.,`Tuesday;-March 21, 1995.

      Following the hearing, the Carrierdetermined that the .

evidence at the Investigation was sufficient to support the
 charges against the Claimant.- He was -issued_a five e _(5) working
 days suspension effective 12_:01 a.m., Monday, April 10, 1995,
 through 11:59 p.m., Friday, April 14, 1995.

 The Organization argues that the Carrier failed tocite any rules which deal with the Orgo-Thermit welding procedure. Instead the Carrier cites rules which deal_only with_the Boutet welding procedure.- The rules governing the two are not identical and at best could be considered .confusing relative to the requirements to wear a face shield. If the rules governing the Orgo-Thermit procedure called for..£ace shields- tobe-used during the procedure, the Claimant would have complied. However, there are no such requirements stated in the applicable rule.

The Carrier contends the Claimant, a long-term welder's

Helper, is obligated to be familiar with the rules_governing ,


                            2

a Ll ~ -r c",-l
 1~

      welding. There is little difference between theBoutet welding

      procedure and the Orgo-thermitwelding procedure. According to

      the Company, the rules cited clearly require the use of face

      shields. In addition, they hold that other sections of the rules

      require employees who are working with molten metals to.wear a

      face shield along with eye protection.


      The Board in reviewing the evidence from the hearing has concluded that the Claimant should have been awareof the requirement to wear a face shiel_d.An_employee is obligated to follow all precautions in preventing injury. It was obvious a face shield was advisable under the circuma_tance~.


      Admittedly, the Carrier failed to cite the rules which more closely governed the situation, however, a Welder's Helper, particularly one with the experience and expertise of the Claimant are expected to know each rulein the_R_ule Book, not just a select few.- In this case, the Carrier'-s failure to cite the appropriate rules did not violate_the..Claiman_t'sdue process. He and his representatives wereclearly aware-of the reason -for the charges and were not disadvantaged in the presentation of a defense. Furthermore, the Claimant, with his experience, would have been well aware of the possible ramifications of working with the molten metal without a face shield.._._.._ _ .__


          Having determined that the Claimant was responsible for

      failure to properly protect himself, the Board turns to a

      determination of whether or not the five (5) working day

      suspension was appropriate. The Board believes the penalty may

      be excessive. The Claimant has 22 years ofservce.=His

      Employment Record is clear. There is no indication he has been

      issued discipline or cautions. Additionally, his record does not

      demonstrate a propensity for injury. He has not suffered an on

      the-job injury in over ten years and of his four recorded

      injuries throughout his employment with the Carrier, only one

      could be classified as moderately serious. The others wereminor

      in comparison. -His Employment Record and his tenure are _

      mitigating factors which should be considered._ ...


3
 Q1(-)-(~ 14

                          AWARD


The five (5) working day suspension should be reduced to a one (1) working day suspension. The Claimant is to be reimbursed the difference in what he would have lost in wages and benefits with the one (1) working day suspension and what he lost in wages and benefits as a result of the five (5) working day suspension.

                              Carol J. Zamperini, Neutral


Submitted:

 July 5, 1995 Denver, Colorado

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