PARTIES Brotherhood of Maintenance of Way Employees
 TO and
 DISPUTE Southern Pacific Lines

 STATEMENT 1.- That the Carrier's decision-to assess -
 OF CLAIM Claimant a thre.a(3) 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__Car_ri_er_s faili~re to_ _ _m

                  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 certified letter dated June 13, 1996,_ the Claimant was

directed to attend a formal Investigation to be held at the _,
 Assistant Division Engineer's Office, _9499-Atkinson Street, _
 Roseville, California, at 9:00 a.m., Thursday, June 27, 1996.
 The purpose of the hearing was to determine whether the Claimant
 had violated Rule--18.8 Head Protection and,Rule 1.19 Games,
 Reading, or Electronic Devices, on June 12,____1996, when he
 allegedly failed to wear a hard hat while operating a Ballast --
 Regulator and also was allegedly reading the newspaper while on
 duty. The portion of the rules citedread_as follows: _, _i-

                                                qW-i01


      18.8 Head Protection


    Safety hats will beworn while on duty in:


    Designated hard hat areas. ~r Areas of potential--injury from falling objects and, Areas designated by supervisor.


    Rule 1.10 Games, Reading, or Electronic Dev-Lces.-


    Unless permitted by the railroad, employees, while on duty, must not:


      Read magazines, newspapers, or other literature-not related-, to their duties.


The Carrier notified the Claimant by letter dated July 5, 1996, that the evidence adduced at hearing was sufficient to determine he violated the aforementioned rules.--They issued a three (3) working day suspension commencing June 19, 1996, through June 21, 1996. The Organization subsequently appealed the suspension.

 The Claimant was assigned as Ballast Regulator_,Operator for.
 Extra Gang #5. He began histenure with the Carrier in January,
 1978. He was working with Tie Gang T-15at-the time of the _,
 alleged rules violations. On the day of the incident he was
 working in Arena, California and went on duty at 6:00a.m. and
 went off duty at approximately 2:30 p.m.

 As he was sitting in his Ballast Regulator.waiting for the Spike Drivers to advance, the Claimant's supervisor, who was driving down the highway at the time, allegedly observed the Claimant recliningin his seat with his feet- on the console reading a newspaper. The supervisor turned around and drove to where the Claimant was working. When he arrived he noticed the Claimant was wearing a ball cap rather than a hard hat and he noticed the newspaper was then covering the back windshield. When he questioned the Claimant aboqt _rgading the newspaper while working, the Claimant denied he had been reading the paper and explained he was using it to block-out-the sun.When he was told to remove the paper he did. He was also questioned about why he was not wearing a hard hat as required. He indicated at the time, he did not believe it was necessaryto wear a hard hat in an enclosed cab. -However, he did wear the hard hat the rest of the day, as directed. He was subsequently offered a waiver and three days off, but, refused to sign the waiver.

                    PARTIES POSITIONS


The Organization argues that this was.. the first time the Claimant was told to wear his hard hat in an enclosed cab.

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Furthermore, they argue that other supervisors-have seen the Claimant without his hard hat and have never told him to put it on. They further argue that the Claimant,was not.re_ading a newspaper at the time and was merely using it to partially block` the sun from coming through the back window. They contend a
 conference at the time of the incidentwould have taken care_of _
 the problem and would have eliminated the need f_or a formal
 investigation.

 The Carrier points out that the supervisor clearly saw the Claimant reclining in his seat with his feet propped on the instrument panel reading a newspaper. They also.contend it is Company policy to wear a hat hard in working areas and that includes whiledriving aBallastRegulator.--They contend the Claimant argued with the supervisor about the need to wear shard hat, as well as, the need to remove the newspaper from the back windshield. The Carrier believes the Claimant was well aware of

the safety requirements and violated the cited rules. _ -


                        DECISION


      The Board has reviewed the facts in this case, along with _

the Claimant's record. The Rule clearly requires employees to
 wear their hard hats in "designated hard hat areas; in areas of
 potential injury from falling objects and in areas designated by -
 supervisor°. The Claimant was working in such an area. If he
 had any doubts about whether or not he had to wear a hard hat in _
 an enclosed cab, he had every opportunity to raise the question
 at the morning safety sessions. Otherwise, he must assume he has
 to follow the rules as written.- An employee has no right to _
 modify the rules to suit his own circumstance.- Hemust seek
 permission to act contrary to the rules. However, there was
 unrefuted evidence that.other supervisors observed the Claimant
 previously in the Ballast Regulator _ and never reminded him about
 the hard hat. Even if the Regulator was not in motion at the
 time, it should have been brought to the,Claimant'_s attention.
 Furthermore, the Claimant did comply with the directives of the ___
 supervisor, albeit with some protest-.- Even though ,this does not
 totally excuse the Claimant, it does- mitigate the penalty due
 him.

      As to the allegation that the Claimant -was reading the

paper, ,there is insufficient evidence. The supervisor was __
 driving by in what he himself described as fast =moving traffic.- '
 It is very plausible, and considering the folded newspaper
 blocking the window, highly probable that the Claimant wasn't
 reading the paper, but folding it for=the_window_ Therefore,

there is insufficient evidence the Claimant violated Rule 1.10 as

alleged.

 The Board determines that the penalty issued was too severe for the offense, based on the facts revealed athearing.

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aL4-)-(g(

                          AWARD


The claim is sustained to the-extent the suspension is reduced to a one (1) day suspension.- The Carrier is to reimburse the Claimant the difference in wages and benefits lost between the three (3) working day suspension and the one (1) working day suspension directed in this Award.

 The Carrier is-to comply with this Award within thirty (30) days.

      &9


Carol J. amperini, Neutral

 Submitted this of &2~4. 1996.
 Denver, Colorado -

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