PARTIES Brotherhood of Maintenance of Way Employes
 TO and
 DISPUTE Southern Pacific Transportation Company (Western
 Lines)
 STATEMENT 1. That the Carrier violated the provisions of
 OF CLAIM the Agreement when, by letter dated December
 29, 1982, it disqualified Richard Ely Hopkings
 as a Ballast Regulator Operator and suspended
 him from service for a period of thirty (30)
 calendar days, commencing January 1, 1983
 through January 30, 1983, for allegedly
 violating Rule M869 and Rule 801, said action,
 following an investigation and a formal
 hearing which took place in Bakersfield,
 California, December 10, 1982, during which
 Mr. J. D. Maxwell, District Maintenance of Way
 Manager, Southern California Region, assisted
 in conducting the hearing,which violated Rule
 45 of the Agreement since Mr. Maxwell was the
 District Manager in the region in which this
 accident took place and he had already
 investigated the incident and knew the
 information regarding the accident prior to
 the hearing.
 2. That Richard Ely Hopkings be compensated for
 all time lost as a result of his unjust
 suspension and that he be considered qualified
 as a Ballast Regulator Operator and that his
 record be expunged of all charges incident to
 this matter.

    FINDINGS

    Upon reviewing the record, as submitted, I find that the Parties herein are Carrier and Employes with 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.

                            _ SBA No. 947 Award No. 3

                            Case No. 3


The Grievant was a Ballast Regulator Operator who worked out of the 7th Standard Road Headquaters in Bakersfield, California.' On November 17, 1982, Mr. Hopkings, Mr. Thomas David Lupio, Extra Gang Foreman, 72, and Martin Sias, Machine Operator, were assigned to go to Goshen, California to return a tamper to Bakersfield. Mr. Lupio and Mr. Sias rode on the tamper and Mr. Hopkings drove the ballast regulator, remaining a safe distance behind during their trip from Goshen to Saco, California. During the trip the equipment traveled at a speed of about 10-15 miles per hour. As they entered Saco and neared the west end switch, which was where they were to stop to get more clock time, the tamper machine unaccountably slowed down to one (1) mile per hour. Mr. Lupio and Mr. Sias jumped from the machine to try to determine what was wrong, but could not. They were directed to proceed in order not to disrupt traffic. Mr. Hopkings who was behind them, noticed the men disembarking and slowed down to'about one (1) mile per hour. When he saw them board again, he accelerated to about five (5) miles per hour. When the Grievant was 200 feet away he did not realize the tamper was still only moving at about one (1) mile per hour, however, when he was about 78 feet from the machine, he knew he was approaching too quickly and attempted to apply the brakes. His vehicle was unable to stop in time and he hit the tamper machine.

 Mr. Hopkings, who was employed with the Company on January 4,

                            2

                                  SBA No. 947 Award No. 3

                                  Case No. 3

1954, qualified as a Ballast Regulator Operator in 1980 and since then had operated the same ballast regulator. During the formal hearing all three men involved in moving the tamper machine from Goshen to Bakersfield on November 17, 1982, testified that there was mechanical problems with both the tamper and the ballast regulator. According to their testimony the tamper was leaking a great deal of oil which covered the rails and made them slippery. However,' Mr. Jack Nelson, Work Equipment Supervisor, testified he doubted there could be sufficient leakage to cause oil to cover the rails since the problem involved a fitting for a cylinder and since no pressure could build up there would be no leaking. The problem with the ballast regulator centered around its brakes. Apparently only three brake shoes were working. None of these problems interfered with the trip from Goshen to Saco.

 Anytime the safety of employes and/or others is at stake, equipment must be operated in a safe effective manner. Mr. Hopkings had operated the same ballast regulator for two years. He was and should have been aware of its mechanical "characteristics". He did testify that he was aware of the brake deficiencies and indicated he was careful to maintain a safe distance behind the tamper during the trip from Goshen to Saco. He also stated he was congnizant of the oil leakage from the tamper. If he had been more alert during the time the tamper appeared to develop trouble and the time they were to arrive at the west end switch at Saco, the accident most

                            3

                                  . _ SBA No. 947 Award No. 3

                                  Case No. 3


i.
            probably could have been avoided. It also most probably would


j have been avoided if Mr. Hopkings had been forewarned of the
            mechanical problems which developed with the tamper, but he was

            not. At least some of the blame should be shared in this

            instance.


            Taking all things into consideration, the Grievant did show bad judgement which contributed to the accident, but he worked for the Company for over twenty-eight (28) years at the time of this incident. His employment record is unblemished with the exception of one accident which occurred in 1974. The discipline issued to him in this matter is excessive.


            AWARD


            The claim is sustained in part; Mr Hopkings is to remain qualified as a Ballast Regulator Operator and his suspension is to be reduced to ten (10) working days; he shall be made whole for all loss sustained in excess of that amount of time. The remainder of the claim is denied.


            ORDER


            The Company is to comply with this order within thirty (30) days of its issuance.


4
 SBA No. 947 Award No. 3
 Case No. 3

Z~U~'


.

 Neutral

 Submitted:

 June 11, 1984
 Denver, Colorado

 5