Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 717?
SECOND DIVISION Docket
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0.
:7964
2-SL-CM '76
The Second Division consis~i-.d of the regular members and in
addition Referee Joseph A< Sickles when award was rendered.
( System Federation No. 7
Parties to Dispute: ( FL3ilway Employes' Department
( A.F.L. - C.I.O. (Carmen)
(
( Sov Line Railway Company
Dispute: Claim of Employes:
I· That the carrier violated the Agreement of January 1, 1954 as
subsequently anended on November 28, 1973, Cayman H. D. Schmidt
was giver. a hearing that resulted in a five (5) work clad:- suspension, March 4th tllru the 8th, 1974 and entered on his service
record.
2. That the hearing was improperly arrived at and represents
unjust treatment within the meaning of Rule 32 of the
controlling agreement.
3. That because of such violation and capricious action, Carrier
be ordered to :remove such charges from Cayman tI. 1). Schmidt's
personal service record and be compensated for the five
day wage loss at the current rate of pay.
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 tine 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 at hearing
thereon.
On November 23, 1973, Claimant and three (3) other Carmen (Dank,
Ochoa and Ketchum) were requested to appear for investigation to place
responsibility for failure "to properly secure Container CPSU 2613789"
on S00 5985 (Loaded November 19, 1973 - and departing on November 21).
Subsequent to investigation, Carrier determined that responsibility for the accident- rested with Claimant, and he was removed
Form 1 Award No. 717?,
Page 2 locket No. 6064
2-SL-CM '76
from service without compensation for five (5) days.
We have thoroughly reviewed and re-reviewed the transcript
of investigation and the remainder of the record, but we are unable
t-o -onclude that Carrier has substantiated its determi..nati.on of us.lt.
Our review of ?.he pertinent evidence shows that: the container came
l.nose same
distance from the departure point, and that certain con-clusions were reached based upon inspection some 100 miles a,.-jay.
let, there was no evidence presented at the investigation which effectively contradicted the direct testimony that all containers'were
properly secured and that locking devices were in place when Claimant.
concluded his work.
It appears that Carrier has engaged in significant specu-
lation in rea chink its conclusions.
Although it is not our function to substitute our judgment for
that of Carrier; nonetheless, evidence adduced must support a reasonable
inference of fact. See Awards 6487 and 6713. Carrier did not present
substantive evidence to support its finding of guilt.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By:
Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 16th day of November, 1976.