Award No. 4135
Docket No. 4064
2-CNO&TP-EW-'63
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Ben Harwood when the award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 21, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. 0. (Electrical Workers)
THE CINCINNATI, NEW ORLEANS & TEXAS PACIFIC
RAILWAY CO.
DISPUTE: CLAIM OF EMPLOYES: 1. That the Carrier violated the current agreement when they unjustly suspended Electrician R. S. Boyd, Jr., from
service pending an investigation on August 2, 1960 and unjustly dismissed him
on August 8, 1960.
2. That accordingly the Carrier be ordered to compensate Electrician R. S.
Boyd, Jr., for all time lost during the period of August 2 through August
24, 1960.
EMPLOYES' STATEMENT OF FACTS: Electrician R. S. Boyd, Jr.,
hereinafter referred to as the claimant, was employed by the Cincinnati, New
Orleans and Texas Pacific Railway Company, hereinafter referred to as the
carrier, at its Chattanooga, Tennessee, Diesel Shop, since November 27, 1950.
Under date of August 4, 1960, 10:25 A. M., Electrician R. S. Boyd, Jr.,
was given an investigation by Manager K. L. Pollitt, Chattanooga, Tennessee,
Diesel Shop, Chattanooga, Tennessee.
Under date of August 8, 1960, Manager K. L. Pollitt, directed a letter to
the claimant advising him that he was guilty as charged and discharged him
from the service of the carrier.
Under date of August 24, 1960, Manager K. L. Pollitt, directed a letter
to the claimant advising him that he was being restored to service with all
seniority, job and vacation unimpaired, but without pay for lost time.
Under date of August 30, 1960, Local Chairman C. C. Williams directed
a letter to Manager K. L. Pollitt, advising him that he `vas claiming pay for
all time lost by Electrician R. S. Boyd, Jr., covering a period from August 2
through August 24, 1960.
Under date of October 24, 1960, Manager K. L. Pollitt directed a letter
to local chairman, in which he declined the time claim.
[670]
4135-13
682
(b) The disciplinary action was imposed in good faith without bias or
prejudice. It was taken with the view of punishing the guilty and setting an
example for others-that carrier's interests, as well as the interests of its
patrons and its stockholders and bondholders be fully protected.
(c) Following the principles of its prior awards in the light of the evidence of record here presented, the Board cannot do other than make a denial award.
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.
Parties to said dispute were given due notice of hearing thereon.
Carrier contends that claimant, when making an electrician's test in the
course of duty, failed to correct, or to report, a then defective ground relay
on the diesel-electric locomotive unit here in question. To the contrary, claimant contends said ground relay was in proper working condition when he
tested it. The Carrier admitted that Claimant knew how to check or test such
a ground relay. And there seems to be nothing in the record which would justify an assumption that, if Claimant found the ground relay defective when
checked, he would not have repaired or reported it. Therefore, we must assume
that if the ground relay was at that time defective the Claimant was negligent
in failing to discover that fact during his check of the diesel locomotive:
Claimant made such check of the locomotive July 27, 1960, but, according
to the record, thereafter for several days this diesel unit functioned properly
and travelled many miles. After leaving Chattanooga, Tenn., it `vent to
Birmingham, Ala., thence to Selma, Ala., then back to Birmingham and on
to Meridian, Miss., from there it was enroute back to Birmingham on August
1st before trouble developed and the main generator was found to have
burned up. Later this diesel unit was towed back to Chattanooga where an
inspection disclosed a defective ground relay. The Carrier avers said relay
was defective at the time of Claimant's test July 27th; that it then should
have been found by him and corrected, or reported, and that his failure in that
regard caused the generator of the diesel unit to be burned up quite a few days
later, to wit-on August 1st.
It is admitted by Carrier that Claimant did test this diesel-electric locomotive unit on July 27th, and the burden of proof is upon the Carrier to show
that the ground relay was then defective and that Claimant did nothing to
correct it, or report it. There is no direct evidence in the record proving
that the ground relay was defective at that time, but Carrier urges upon us
the-assumption that it must then have been defective;-Jthus, upon the further
assumption that nothing could or did occur in the next four or five days and
several hundred miles of travel and operation to cause the ground relay thus
to become defective.jWe find it difficult to make such assumptions in the face
of the record wherein appears evi ence that the ground relay could have
become defective from other causesfbetween the time of Claimant's test, July
27th, and the eventual generator damage on August 1st.
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4135--14
683
As was said in Second Division Award 1769 (Carter): "We do not think
Electrician Staib was subject to discipline under the evidence. Discipline must,
be based upon something more than a mere suspicion or possibility that an
employe failed in his duties." Award 1769 was cited with approval in Award
1969 (Donaldson) where a claim was sustained "for want of proof of the charge
made." And again in Award 4046 (Anrod) this Division held: "Mere suspicion
is not sufficient to prove that he committed the offense for which he was dis
charged . . . . Hence, his. discharge was not for just and sufficient cause." (Em
phasis ours).
From a review of the record we conclude that the evidence relied upon by
x
Carrier is too speculative to support the charge made; that there has been a
failure of proof on its part and that Carrier's position cannot be upheld.
Accordingly, we hold that the claim should be sustained and that Claimant
should be compensated for all time lost by him during the period August 2
through August 24, 1960.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 27th day of February, 1963.