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    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 fifteen (15) calendar 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.


    On July 18, 1996, the Claimant was notified to attend a formal Investigation on Thursday, July 25, 1996. -The purpose of the hearing was to determine if he had failed to secure the spike gun and roller-gauger assembly when he was operating spike-gauger #522 on July 16, 1996. As the two-man crew moved the spikegauger over the track, the assembly hit in several places. When they tried to move the machine backwards, the assembly lodged against the tracks and the spike-gauger derailed.- The Carrier charged that the Claimant violated the following rules:


        1.6 Conduct


        Employees must- not be:


        2. Negligent

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      Any act of . . .negligence affecting the interests of the Company. . .is sufficient cause-for -dismissal-__.


      17.5 (M) MOVEMENT OF ROADWAY MACHINES AND WORK EQUIPMENT


      3. All safety devices, such as pins or locks must be in

      place.


After the Investigation, the Carrierreviewed the transcript of the hearing and determined that the-Claimant violated the cited rules. He was suspended for 15 calendar days without pay. He was not offered a waiver for this incident.-

 The Claimant was a spiker operator for the Carrier. He was
 first employed in 1978_._ However, his tenure with the-Carrier-was
 disrupted when he was dismissed in 1987. and 1989 for -a Rule G
 violation and for violating his conditional-reinstatement
 respectively. He was unemployed approximately four months total
 during his employment with the Carrier. -

 The spiker machine operated by the Claimant, is used to secure the plates onto newly installed rail.- Two parts of -the machine, the spiker and the roller-gauger, must be secured when the machine is traversing track tor_ any distance and not actually in operation.

 On the day in question, the Claimant, along with one other employee, were operating a spiker machine. As the two men were proceeding toward the work site, they kept hearing noises. At one point, they stopped and put the machine into reverse.- As they backed up, the machine derailed. It wassubsequently determined that the assembly had caught on the rails and caused the derailment.

 During the investigation, the Supervisor noticed nicks on the joints which indicated the assembly on the Claimant's side had not been secured as required. Therefore, the parts dragged - across the rail as the machine_was:driven_toward_the__work area. When questioned as to why he had not secured the parts, the Claimant responded that he thought they-were commencing-work in the immediate area. In reality, the work site was about six miles away. At the hearing, however, the Claimant admitted that he forgot to place the pin in the aseembly to hold it in place. Since the employee on the other side of-the-machine-had--secured the assembly on his side, the Claimant was the only one charged.

                  POSITION OF THE PARTIES


The Organization claimsthe Carrier-'s actions were harsh. After all the only part of the machine damaged was the safety roller. The machine was still operable after the accident. The

 punishment was not warranted under the circumstances.- the incident should be used as a training session. They further
 argue that the Claimant is an excellent operator and should not
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        be punished financially for this one mistake. Furthermore, the Claimant, they say, was very remorseful. They point out that this was the first accident since his reinstatement in _1989, six years earlier. They point to the fact the Claimant was honest and forthright which in today's day and age should be mitigating factors.- They urge that the fifteen day suspension be reduced in recognition of the Employee's cooperation.


        The Carrier points out that the Claimant was indeed responsible for failing to secure the assembly on his machine. His actions caused the accident and resulted,~n damage to-the equipment.


                              DECISION


        The Board has reviewed the facts of this case. _The Claimant, has a long tenure with the Carrier. Although he has been dismissedin the past for a RuleG violation and subsequently for failing to comply with his conditional reinstatement, it appears he has made considerable strides since his reinstatement in 1989._ There was no suggestion and no evidence presented which indicated that his failure to secure the assembly on the spiker-gauger was related in any way to. substance- abuse.. __fo_r_this ,reason, the. Board believes the penalty issued was too severe


                                AWARD


        The fifteen (15) calendar day suspension is to be reduced to -a ten (10) calendar day suspension. The Claimant is to be reimbursed the difference between what he.eearned-as-.a result of _ the fifteen (15) calendar day suspension and what he would have earned with a ten (10) calendar day suspension.


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


                                                - I


                                    Carol ~2//Cmperini, Neutral


Submitted this a 7 2of ,~ 1996.__ _
 Denver, Colorado