The Second Division consisted of the regular members and in
addition Referee D. Emmett Ferguson when the award was rendered.
SYSTEM FEDERATION NO. 122, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Electrical Workers)
EMPLOYES' STATEMENT OF FACTS: Electrician S. Mitchell, hereinafter referred to as the claimant, was employed by The Pullman Company as an electrician at the Buffalo Shops on July 23, 1923 and has been in their service ever since.
Under date of September 10, 1956, the claimant was notified to appear for a hearing at 2:00 P.M. September 11, 1956. The hearing was then recessed until October 5, 1956 which date the hearing was completed; a copy of this hearing record is submitted herewith and identified as Exhibit A.
Under date of October 31, 1956, Manager L. N. Friol, Buffalo Shops, notified the claimant that he would be withheld from service for five work days and his service record assessed with a notation; a copy of this decision is submitted herewith and identified as Exhibit B.
Under date of November 9, 1956, we appealed this decision; a copy of this appeal is submitted herewith and identified as Exhibit C.
The National Railroad Adjustment Board has repeatedly held that where the carrier has not acted arbitrarily, without just cause, or in bad faith, the judgment of the Board in discipline cases will not be substituted for that of the carrier. In Second Division Award 1323, Docket No. 1256, the Board stated:
Also, in Third Division Award 2769, Docket No. PM-2677, the Board stated, under OPINION OF BOARD, as follows:
The Pullman Company has shown in this ex parte submission that on Tuesday afternoon, September 4, 1956, when Electrician S. Mitchell was scheduled to be on duty in the battery house at Buffalo Shops, he was observed by Leader Electrician R. Michael asleep on duty outside the battery house behind a tall pile of "skids." Further, the company has shown that Mitchell's condition was also observed by Assistant Foreman J. A. Stegmeier and Foreman R. Herget. The company has also shown that the excuse offered by Mitchell to explain his presence outside the battery house; namely, that he was "sick," is not supported by evidence.
The company has shown, thus, that the hearing officer was fully justified in finding that the charge against Mitchell was substantiated. Finally, the company has shown that its position in this dispute is supported by awards of the National Railroad Adjustment Board.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Senator Mitchell, the claimant, had thirty three years seniority with the Pullman Company as an electrician, when he was suspended November 5, 1956 for allegedly sleeping on the job. He was found by three supervisors in a sleeping position, outside his work area, with his eyes closed. When he was accosted he declared he had been sickened by the fumes discharged by batteries. He was checked by the Company nurse as to pulse, temperature, respiration and was asked if he wanted to go home. He elected to work out the balance of the day.
At the investigation he continued to deny that he was asleep and mentioned the spot where he had rested, declaring that "if he had come up, he would have seen where I emptied my stomach." Mr. La Breck the local chairman testified, "I went there several days afterwards and you could still see the evidence of it."
It thus appears that the investigation held by the company failed to investigate and in the determination overlooked the best evidence as to Mitchell's sickness. This was arbitrary and violates our understanding of the application of the rule.