The Second Division consisted of the regular members and in
addition Referee Paul C. Dugan when award was rendered.
SYSTEM FEDERATION NO. 109, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
EMPLOYES' STATEMENT OF FACTS: Car Inspector Robert J. Grace, hereinafter referred to as the claimant, was hired as a car repairer helper at Rutherford Yards, Rutherford, Pennsylvania, on April 16, 1953 by the Reading Company, hereinafter referred to as the carrier.
December 22, 1955, claimant was advanced to up-graded helper; worked as such until he qualified for placement upon the Carmen mechanics' seniority, which was done on January 12, 1962.
Upon being furloughed in April, 1963, claimant applied for carman mechanic position at Reading Car Shop and he was transferred thereto on April 11, 1963, at which point he was working on day of hearing held on June 16, 1969.
Shortly thereafter, claimant transferred back to Rutherford Yards at which time the instant claim was initiated with the carrier by the Local Chairman of Harrisburg Lodge No. 25, BRCofA.
Claim for the five (5) days' wages lost was filed with the proper officers of the carrier up to and including the highest officer so designated to handle such claims, all of whom declined to make satisfactory adjustment.
if the area in which he was working was free of material in order to insure a safe escape in the event of a shift in the load.
Most importantly, the claimant had been instructed that two men were not permitted to guide the load because it created the hazard of collision or tripping in an attempt to escape a shifting load.
Carrier submits that the discipline assessed in the instant case was justified in a two-fold manner. First, the claimant failed to survey his work area for loose material which would impede an escape and he compounded this negligence by working with another employe, contrary to his superior's instructions. Secondly, the discipline assessed must be viewed as a necessary preventative measure to insure the claimant's future concern for his welfare when engaged in dangerous work. Carrier suggests that a five day suspension is more endurable than the lament of one's own funeral.
For the reasons advanced herein, carrier requests that the claim of the brotherhood be denied. This claim has been handled by conference and correspondence on the property.
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.
Claimant was suspended for five (5) days for sustaining a personal injury at Carrier's Reading Car Shop, Reading, Pennsylvania, on January 24, 1969.
Carrier alleges that the discipline assessed against Claimant was justified because: (1) Claimant failed to survey his work area for loose material which would impede an escape and by working with another employe, contrary to his superior's instructions; and (2) the discipline assessed against Claimant is a necessary preventative measure to insure the Claimant's future concern for his welfare when engaged in dangerous work.
The facts as developed at the hearing were that Claimant was helping to unload sides on two flat cars while working as a hookup man.
Claimant was asked at the hearing by Carrier's Superintendent of Freight Car Construction, W. L. Fisher, the following question:
Carrier did not produce any evidence to show that Claimant failed to survey his work area for loose material which would impede his escape
while he was helping unload said flat cars. Mere assertions without supporting evidence are of no probative value.
Further, in regard to whether or not Claimant disregarded the instructions of a superior officer, the record reveals that said Superintendent Fisher asked Claimant the following question:
While the inference could be drawn that said Superintendent Fisher did instruct Claimant for only one employe to guide material rather than two, yet Superintendent Fisher did not at any time at the hearing testify that he did direct Claimant to so unload the material in question. Further, Claimant testified that Assistant Foreman Hetrich had suggested to him that better control of guiding the sides would be with two men on each side guiding said material. Carrier did not bring in Mr. Hetrich to refute Claimant's said statement.
Thus, the record indicates not only conflict as to the manner in which the sides were to be unloaded, but also there is a question as to whether or not Claimant received specific instructions from Superintendent Fisher as to how he was to so help unload said sides. Carrier failed to meet its burden of proving Claimant guilty as charged by a preponderance of the evidence, and, therefore, we must sustain the Claim.