The Second Division consisted of the regular members and in
addition Referee Joseph S. Kane when award was rendered.
SYSTEM FEDERATION NO. 99, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Firemen & Oilers)
EMPLOYES' STATEMENT OF FACTS: Laborer John Carter, hereinafter referred to as the Claimant was employed by the Illinois Central Railroad, hereinafter referred to as the Carrier, for approximately 15 years, and prior to dismissal was assigned on the 7:00 A. M. to 3:00 P. M. shift, Monday through Friday, with rest days of Saturday and Sunday.
Shop Superintendent L. R. Barron directed a letter to the Claimant under late of December 21, 1965 directing him to be present at a formal investigation to be held at 9:30 A. M., December 28, 1965, a copy of which is attached and dentified as Exhibit A.
Investigation was held as scheduled and attached and identified as Exhibit 3 is a copy of the hearing transcript.
Under date of January 4, 1966 Shop Superintendent L. R. Barron directed letter to the Claimant advising him he was dismissed effective January 4, 966, a copy of such letter is attached and identified as Exhibit C.
The dispute was handled with Carrier officials designated to handle such ffairs, who all declined to adjust the matter.
The Agreement effective April 1, 1935 as subsequently amended is con,olling.
Therefore, Carter's gross negligence in this instance, considered with his past record of irresponsibility, is ample reason for his dismissal by the Illinois Central Railroad.
When, as in this case, the cause for discipline has been adequately shown,. the Second Division has repeatedly held, that it will not substitute its judgment for that of the company.
The company has shown that; (a) Carter was solely responsible for the damage to Illinois Central equipment as charged, (b) Carter was grossly negligent under the circumstances, (c) this negligence, considered with Carter's poor work record, gave the company ample cause to dismiss him.
All data included in this submission has been presented to the employes and made a part of the question in dispute.
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.
On December 9, 196'5, the claimant, a laborer, was assigned to a second shift tractor operator's position at the Weldon Coach Yard. He was instructed to proceed to the passenger terminal area and exchange the garbage wagon his tractor was pulling for one of the wagons parked near the terminal. He was also given some paper cups and towels to deliver to the depot located near the passenger terminal. When he reached a desired area from which to perform his work he parked the wagon portion on the track. While engaged in delivering the cups and towels to the station his wagon was struck by an engine. However, he did attempt to flag down the engine but was unsuccessful.
An examination of the transcript of the investigation reveals that the claimant was working the position of his own choosing, was familiar with the duties of a tractor driver and considered himself a qualified competent tractor operator. The facts don't reveal any inability on the part of the claimant to operate the tractor, but only his failure to park the wagon free of the track. The claimant states in the transcript:
In this testimony the claimant is saying it was more convenient for him to park at this location to perform his tasks. In light of the rules, if in order to perform his tasks he must violate them - he just can't perform the tasks.
The record further reveals that it was the responsibility of the carrier to prove that on December 28, 1965 the concourse was open or other areas open and available to park the tractor. However, an examination of the rules violated are as follows: