Claimant: R. M. Vera


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 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.

 The Claimant works as a Truck Driver for the Carrier. On May 2, 1995, he was directed to attend a formal Investigation to determine whether he had violated Carrier rules by failing to use proper lifting techniques on April 19, 1995, while picking up a 40 lb. pail of spikes to place in the bed of a hi-rail pick-up. Because of this allegation he was charged with the following rule violations:

      1.1 Safety


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


      It is the responsibility of every employee to exercise care -

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      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 a unnecessary risk in the performance of duty.


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


      1.6 Conduct, that part reading:


      Employees must not be:


          1. Careless of the safety of themselves or others.


          Any act of. . .willful disregard-or negligence -

          affecting the interest of the Company or its employees

          is sufficient cause for dismissal-and.must__be__ reported.


          Indifference to duty, or to the performance of duty, will not be condoned.


The Claimant was offered a waiver_in the ,amount of a five - (5) day suspension.

 The hearing was eventually held on May 11, 1995, at the Office of the Division Engineer, 19_100 SloverAvenue, Bloomington, CA. The Carrier subsequently reviewed the evidence and determined the Claimant violated the cited-rules. He was suspended for a period of five (5)-working days. The organization appealed the decision-to this Board.

 The Claimant is currently a Truck Driver for the Carrier. He has over 28 years of servicewiththe Company. On the day of the incident he went on duty at 7:00 a.m. at Taylor Yard. During the day, it was necessary for him to load a quarter pail of spikes onto the bed of the Hi-Rail. -He first-lifted-the pail to the bumper, mounted the bumper and lifted the pail over the tailgate. At that point, he experienced pain in his shoulder and his arm. He reported the incident to hisForeman,_butdid not want to fill out a report until he was sure he was actually injured. It was in the afternoon that he asked the Foreman to formally report the injury. The Claimant was then taken to the doctor. As a result of the injury, the doctor would-not clqar him for service, therefore, he missed work.

 The Organization points to the Claimant's tenure and argues that he is worthy of a benefit of doubt especially since the Carrier's evidence falls short of proving the Claimant performed his duties inanungsafe manner.- Furthermore,_since the purpose of discipline is to rehabilitate and not punish employees, it is the Organization's contention the Claimant should be exonerated of the charges.

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The Carrier argues-that the Claimant- had the necessary training to recognize the correct way of lifting-materials. He failedto lift the pail of nails-in-the proper manner and caused the injury to himself. He could have asked for help, which was nearby or he could have lowered the tail gate and lifted the pail with two hands. The Carrier contends either scenario would have prevented the Claimant from sustaining-an injury.

                        DISCUSSION


This Board believes the Carrier hasprovided sufficient evidence to sustain the charges against the Claimant. However, we also believe the penalty issued for this incident is excessive. The Claimant has 28 years of service. His employment record indicates he has been an exemplary employee during his tenure. It is understandable that he was somewhat dismayed at being citedfor an injury and offered a waiver-of-a five (5) day suspension when his record indicates lie hasneverbeen cited- -during his career for any ruleviolation and hashad,very_few, injuries. In fact, his record shows he was injured twice in 1969 and has had no injuries until the present injury. This certainly indicates that he is an employee who does work in a safe manner and is not careless when it comes to performing his work. It is= true the Claimant demonstrated bad judgment on April 19, 1995, and deserves some discipline. We concur with the Organization that a five (5) working-day suspension is not in keeping with the concept of progressive discipline. Rather than suspension, the Claimant should be issued 30_demerits and forewarned _that_future failure to adhere to the rules will result_in_-a-more.. severe -_ disciplinary action.

                          AWARD


The claim is sustained to the extent outlined within-this sward.

 The Carrier is to comply with the Award within thirty (30) days of the date it is received.

                              Carol . Zamperini, Neutral


Submitted:

 October 27, 199_5 -
 Denver, Colorado

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