The Second Division consisted of the regular members and in
addition Referee P. M. Williams when award was rendered.
SYSTEM FEDERATION NO. 21, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Carmen)
DISPUTE: CLAIM OF EMPLOYES: 1. That under the current agreement, Carman C. L. Thompson was improperly removed from service and deprived of his employment rights for 57 working days.
2. That accordingly, the Carrier be ordered to compensate the aforenamed employe for the 57 working days lost.
EMPLOYES' STATEMENT OF FACTS: Carman, C. L. Thompson, hereinafter referred to as the claimant, employed by the carrier at Charlotte, North Carolina, was taken out of service, charged with failure to properly inspect ATSF 274324 March 5, 1962.
Formal investigation was held March 13, 1962. The claimant was orally notified he was being restored to service effective June 1, 1962.
This dispute has been handled with the carrier's officers designated to handle such matters, in compliance with current agreement, all of whom have refused or declined to make satisfactory settlement.
The agreement effective March 1, 1926, as subsequently amended is controlling.
POSITION OF EMPLOYES: It is submitted the claimant was subject to the protection of the provisions of the aforesaid controlling Agreement made in pursuance of the amended Railway Labor Act, particularly the terms of Rule 34, which reads in pertinent part:
The discipline administered having been imposed in good faith without bias or prejudice, and there being no evidence of arbitrary or capricious judgment, the board should follow the principles of the cited awards and refrain from substituting its judgment for that of the carrier, which it, in fact, has no authority to do.
(b) The charge against Car Inspector Thompson was proven, and he was suspended and dismissed for just and sufficient cause. He was not improperly removed from service and deprived of his employment rights, as alleged.
(c) There can be no showing that the discipline was imposed as a result of arbitrary or capricious judgment or in bad faith. Furthermore, carrier's action is fully supported by the principles of awards of all four divisions of the board.
In view of all the evidence, 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.
The Carrier employed the Claimant herein as a Car Inspector and Repairman at its Charlotte (North Carolina) yards. The Carrier states that on March 5, 1962 a car with a broken carrier iron was not properly inspected by Claimant because the mentioned break was present and was missed by him, and he admits that he did not give the car a thorough internal and external inspection. Subsequent to the inspection, though 375 miles away, the car in question was involved in a separation which, the record shows, was caused by the broken carrier iron and which brought about a major wreck.
An investigation of Claimant's failure to properly inspect the car was held and it was determined that he had not properly performed his duties. Whereupon, he was discharged. However, 53 days later he was restored to his position with seniority rights unimpaired.
The employes allege that Claimant's dismissal was the result of the Carrier's arbitrary exercise of discipline power and they request that he be compensated for the 57 days lost.
Claimant's candor in admitting that he did not properly inspect the defective car, though admirable, does, in the absence of more supporting evidence, prevent our finding that the Carrier acted arbitrarily in exercising its managerial discretion because this record reveals that the defect was obvious and should have been seen by a car inspector properly performing his work. Moreover, the defect caused a major wreck. 4544--22 330