Parties to Dispute: ( (Carmen)

    (

    ( The Washington Terminal Company


    Dispute: Claim of Employes:


              1 - That under the current agreement, Car Repairman, R. H. Winstead$ was unjustly dealt with when lie was assessed with a thirty (30) calendar day suspension from the service commencing September 20, 1970.


              2 - That accordingly, Car Repairman, R. If. Winstead, is entitled to be compensated for all wage loss that -resulted from his unjust thirty (30) calendar day suspension from the service.


    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 waived right of appearance a t hearing thereon.


    Claimant was charged as follows, Employes' Exhibit A: "failure to properly secure the cars in #? Express Warehouse, during your tours of duty, which eventually resulted in the uncontrolled movement of eight cars out of ltl Express Warehouse into 31 track mailhouse at approximately 3.50 a.m. on July 1.6, 19'70."


    The hearing disclosed. that d.uring his tour of duty from 8 a.m. to 4 p.m. on July 15, 1970 claimant failed, to provide air throughout the track. On July 14, he had. applied air to the first car at the south end and air worked north. On July 15, he noticed. that 2 more cars had. been added at the north end and the cars had. been shoved down the track from their positicn on July 14. He coupled the air hose between the cars that had beer, attached. at the north end but had no air. He made no further check, p.8, Employes' Exh''.bit B. The hearing also disclosed that the .first

Form 1 Award No. 6356(
 Page 2 - Docket No. 6142
 2-Wi-CM-'72

 car at the south end. had. been removed at 10 p.m., 6 hours after claimant went off
 duty. At about 3.50 a.m , almost 12 hours after claimant went off duty there was j
 an uncontrolled movement of the cars which resulted. in extensive and costly damage. '

 Carrier contends that claimant's failure to maintain air on the draft of cars during his tours of duty on July 1_4 and 15 was a breach of duty which was_ the primary cause of the accident on July 16,, Carrier's Submission p.2.

 It is conceded by the Carrier that the yard crew was negligent and contributed to the cause of the accident when it removed. the car at 10 p.m. but contends that it has the right to apportion responsibility for the accident, Carrier's Rebuttal p.l. A Carrier':, witness, retired General Car Foreman testified.' that the Steam man should have been called when a move of cars was made and that on Warehouse No. 1 track, it was imperative to do so, Employes' Submission, Exhibit B, p.10, 11.

 Primary or proximate cause for the accident is not the same as apportioning the responsibility. These are inconsistent theories. The intervening factor of car movement and control by the yard crew while removing ;a. car disturbs the flow of. events and. raises a question as to..proximate cause. The Crew Conductor or Yard Master did not alert the Steam man regarding the movement at 1_0 p.m. on July 15, ;n an imperative situation such as existed. on Warehouse track No. 1 which is a thro( track.

 Claimant was suspended for. 30 calendar days because his neglect was
 judged to be the proximate cause. It is not for this Board to fix the penalty for 00
 partial fault but to act only as to the charge a; stated aggainst claimant and. as to
 the penalty imposed against him as the alleged. primary wrongdoer. In this case, we
 do not believe that the evidence is sufficient to place that burden on the claimant
 beyond a reasonable doubt or by a preponderance of the credible testimony.

                      A W A R D


        Claim sustained..


                          NATIO:1AL PAIDROAD ADJ~JSTh1EIVT BQARD By Order of Second. Division


Attest: C f. Glr. l
 Executive Secretary

 Dated at Chicago, Illinois, this 14th day of July, 1972.