Claimant: M. Matthews, Jr.


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 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 charges against the Claimant stemmed from a supervisor

reporting that the Claimant was allegedly riding on top of a
 gondola loaded with ties while the train was in motion. The
 carrier held a formal investigation to determine the Claimant's
 responsibility for this charge. After reviewing the evidence
 produced at the hearing, the Carrier decided that the Claimant
 had violated the following rules: '-

      1.1 Safety


      Safety is the most important element in performing duties, obeying the rules is assential to job safety and continued employment.

      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 cannottake the time to perform all work safely.


      1.6 Conduct


      Employees must not be:


      1. Careless of the safety of themselves or others

      2. Negligent


      1.54 Riding on Car or Engine


      When required to ride equipment do not:


      Ride inside or between the end of a-car with shiftable_-.-

      loads.


      71.1.25 Employees are not permitted to ride on cars or

      locomotives unless specific duties-require-it.


      71.7.7 Foreman and others in charge of work are responsible -

      for the safety of their men and must see that no unnecessary

      risks are taken. They shall bear in mind that safety is the

      first and most important consideration.


      Employees must do all possible toprevent accidents even though in so doing they may necessarily perform the duties of others. In case of doubt, the safe course must be taken.


      The Claimant was first employed by the Carrier in 1978. At

the time of the-charges,-he was a Track Foreman on Extra Gang 6.-
 He had been a Foreman for nearly six years, but only for 5 months
 on Extra Gang 6. On the day in question, he went on duty at 7:00
 a.m. and off duty at approximately 3:30 p:m. The work train he
 was working on-was delivering and unloading tieaon the number 1
 track between the east switch at Caliente and the west switch at
 Limon. At some point, the Roadmaster observed the Claimant -
 riding on the gondola which was loaded with ties. He, along with
 others, stopped the work train and asked the Claimant why he was
 riding in the gondola.- The Claimant explained that he had been
 looking for a broken hose when the train began moving
 unexpectedly. The supervisor testified that the Claimant could
 not explain why he did not stop the train at the time, especially
 since he was allegedly only twenty (20) feet from the Brakeman
 who had a radio.
                                                ~U~ -r 83


                  POSITION OF THE PARTIES


The Organization claims the Claimant was not in charge of the train. When he got on top of the gondola, he was looking for a broken hose. The Organization believes the Foreman in charge of the work train should have made sure everyone was off the train before he ordered the train to move. They argue, that after the train started moving,- the___C_laimant_had_to expend his efforts finding a safe place on the loaded car to brace himself.

 The Carrier argues thatthe Claimant-should n-ot--have put himself in the position of getting caught onthe gondola. They claim he had time todismount the car_before it_started to, move. any case, the Carrier asserts that the Claimant could have contacted the Brakeman and asked him to stop the train since he had a radio.

                        DECISION


Unrefuted testimony, supports the Claimant's contention that he climbed on top of the loaded gondolato asaist__in_finding -and.repairing aleaking hose.. All indications are that he didthis while the work train was stationary. Further testimony indicates the work train began to move at the direction o_f_the Foreman in charge. It is not certain that once the order_to move the train was issued there was sufficient time--for the C_lamant to climb ,_ down off the gondola, especially considering the fact it was loaded with ties. However, testimony does reveal that the_ Claimant made no attempt to stop the train once it started to move. Although the Board appreciates the fact he'was in a vulnerable position, he still should have made some attempt to get the Brakeman to contact the engineer orrhe_ should have tried to motion to someone himself. After all, the supervisors had no difficulty getting the train to stop once they noticed the Claimant on top of the Gondola. The other_thing_theCiaimant should have done was to advise the Foreman of the work train that he was going to board the gondola to look for_the_ leak.-

      In view of these facts, the Board is convinced that the

Claimant bears most of the responsibility in this matter. Even
 though, the Board believes the Foreman-in charge of the work
 train should have been more awareof where his workers were
 before giving the order to move, the Board does notbelieve the
 penalty issued was unreasonable inview of_th_e__Claimant's
 previous safety and overall employment record, as well as, the
 seriousness of the offense in this --case _ __
                                            Q~(1-133


                          AWARD


The claim is denied.-

    G~

    U

Carol J/amperini, Neutral

 Submitted this of 1996.
 Denver, Colorado