Claimant: J. A. Herrington


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 thirty (30) working day suspension
 withoutpay 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 forany 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 has been employed by the Carrier since January, 1978. He had been a Ballast-Regulator Operator for about six months at the time of the incident which precipitated the charges in this case.

 On June 18, 1996, the Claimant went on duty at Arena, California at 6:00 a:m. and went off duty at approximately 5:00 p.m. On that day, the Claimant was working with the Tie, Gang and the Surfacing Gang, which were doing work on the main track. At some point they were notified that two trains had to-by-pass them using the siding. They were given instructions to clear the track and roll by the trains. They were also advised not to resume work until they were given clearance. After the first train passed, the Claimant dropped the wing of his Ballast Regulator and continued to work. When the secondtrain
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approached, he could not raise the wing in time and the second train hit the wing. When he was questioned about the accident, he said he forgot that the wing was down.

      As a result of the accident, the Claimant received a charge

letter dated June 19, 1996. Therein, he was advised to attend a __
 formal investigation to determine if .his actions were in
 violation of the -following rules:

      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 to avoid injury to themselvesor 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.


      72.13.3 of the Chief Engineer's Instructions, which states:


      Equipment shall not be operated in sucha manner to endanger life, limb or property. No equipment shall be set in motion until it is known that the way is clear.


      Following the Investigation and a review of the transcript,-

the Carrier suspended the Claimant for thirty (30) working days
 for violating the aforementione_d_rules. _

                    PARTIES POSITIONS


The Organization claims that the lack of..a radio prevented the Claimant from getting clear instructions. -Especially since he was working out of view of the Foreman. They-also argue that the Claimant was only told of one train and was unaware that a second was due. Therefore. once the first train passed he returned to work. Since he customarily works with his head down, he did not see orhear the second train untilit was too late.

 The Carrier contends the Claimant, along with the rest of the gang, was told that there could_possihly betwo trains and they were to stay clearuntil they were told to go back to work. Furthermore, the employees were told to-roll-the-trains by the work site. The Claimant obviously did not perform this duty, since he was on his machine,-at least during the passage of the second train.

                                              q~r7- ma


                        DECISION


      Even though the Claimant has a lengthy tenure with the

Carrier, he seems to have lapses when it comes to complying with
 safety regulations. Sometimes. we do a job for so long, it
 becomes second-nature and we are-=not, as attentive as we should _
 be. Perhaps this is what happened to the Claimant. However, the
 evidence indicates he was the only one who failed to understand
 the instructions given on the day of the incident. Because the
 Claimant has had problems with safety violationsinthe past, the
 Board believes the penalty issued in this case-is not only
 appropriate, but, will hopefully serve to enhance the Claimant's
 awareness of the need to listen to instructions carefully and to
 operate his equipment safely.

                          AWARD


The claim is denied.

          i


~~/~

Carol J.4 amZ perini, Neutral


submitted this of ~~. , 1996. -_ Denver, Colorado