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, after a formal hearing -
 held on June 16, 28, 29, and 30, 1983, they
 suspended Mr. Severo Oliverez for a period of
 thirty (30) days, effective August 9, 1983 -
 September 7, 1983, for allegedly violating
 Rule 13 of the Rules for the Safe Operation
 and Care of Automotive and Trailer Equipment
 of the Southern Pacific Transportation
 Company; said action being excessive and
 unjust.
 2. That all charges against Mr. Oliverez be
 dismissed, his record cleared, and he be
 compensated for any time lost as a result of
 these charges.






chains and two chain binders to secure the Speedswing onto a tiltbed trailer, which was hooked onto dump truck W-739. Around 8:14 A.M., while enroute, in the vicinity of MP 53.0 near Suisun, one of the chains broke causing the Speedswing 'to roll off the trailer and land upside down on the roadway. When the Speedswing rolled off the trailer, the front of the trailer tipped up which in turn lifted the back wheels of the truck. Consequently, Mr. Oliverez, the driver lost control; the traileY jackknifed and the truck overturned. Mr. Oliverez and one of the two passengers with him in the truck were slightly injured. The total damage to the equipment was in excess of $10,000.00.

 The Company said nothing to Mr. Oliverez regarding the accident until June 6, 1983, when he was handed a letter which notified him of a formal hearing which was to be held on June 16, 1983. The hearing was set up to determine if the accident on April 4, 1983 resulted from his negligence in violation of Rule 13 of the Rules for the Safe Operation and Care of Automotive and Trailer Equipment of the Southern Pacific Transportation Company.. Subsequent to the hearing, Mr. Oliverez was found responsible for the accident because he had failed to secure the Speedswing to the trailer in a proper manner. '

 The Company claimed the driver was responsible. for making sure he had the right chains for the job. Instead of having heat treated chains he had regular chains. The Company witnesses also testified that it would have been preferable to use four

                          2

SBA No. 947 Award No. 9
                                          Case No. 9


chains instead of the two chains used by Mr. Oliverez. Two heat treated chains could have been used if secured properly to the axle of the Speedswing. This was especially necessary since there were no hooks on the Speedswing to attach to. Therefore, the chains should have been placed through the front and rear D rings on the trailer and then around the differential housing (large axle) on the Speedswing, attaching the left front housing to the left front D ring on the trailer with the other three ends attached to their respective front and rear corners. Instead Mr. Oliverez, attached the chains to the center D rings on both sides of the trailer. He did not properly secure the chain around the axle, therefore when one of the chains broke, the Speedswing worked loose and rolled off the trailer. The driver also failed to used the required four chain binders. Instead he used just two. The Grievant in response testified he had used the chains given to him by his Supervisor, Mr. Flores and the only reason for the accident was the fact the chain broke. Otherwise, he had properly secured the Speedswing. He also testified that someone was always taking his chains and his request for chains was always denied instead he was directed to look for additional chains in other trucks.

 Quite frequently in cases such as this, no one becomes upset
 until something happens. It would appear Mr. Oliverez's
 Supervisor was aware of the type of chains used by the Grievant.
 He had some responsibility to be sure the chains issued the
 employe were up to specifications. In all probability the type
 a
 SBA No. 947 Award No. 9
                                        Case No. 9


of chains used resulted in one of the chains breaking which caused the accident. Even the report of the CHP Officer indicated that to be the case. However, there is no indication the Grievant ever protested the type of chains he was issued nor is there evidence he attempted to obtain four shorter heat-treated chains which would have secured the Speedswing more efficiently. Instead, using two long chains, he tied down the Speedswing in the same manner he may have secured things in the past not expecting any difficulties. Evidence suggests that if the chains had been properly secured around the axle of the Speedswing, the Speedswing would have stayed in place even if one end became loose. The same would probably have been true when the chain broke.. It appears Mt. Oliverez did not properly stabilize the Speedswing onto the trailer. As a result, when the chain snapped, the Speedswing shifted.

 Management must share at least some of the responsibility in not assuring that the type of chains issued met the proper specifications. The Supervisor also erred in the lengthy delay in questioning Mr. Oliverez and raising the issue concerning his possible responsibility in causing the accident. This type of delay is unfair to the employe and could conceivably interfere with his ability to present an adequate defense of allegations brought by the Company.

 Taking all the above into consideration, I believe the penalty issued to Mr. Oliverez was excessive.

                          4

                                            SBA No. 947 Award No. 9 Case No. 9


    AWARD


        The claim is sustained in part; the penalty issued to Mr. 0liverez is to be reduced to fifteen (15) days; he is to be reimbursed for any time lost, as a result of this. incident, in excess of this amount.


    ORDER


        The Company shall comply with the Award _

        herein within thirty (30) days from the date

        hereof.


                            Carol J. /Z ini //Neutral


Submitted:
            .


Denver, Colorado July 17, 1984