Form
1 NATIONAL RAILROAD ADJUSTMENT
BOARD Award No.
7237
SECOND DIVISION
Docket No.
7105
2-SOU-CM-t77
The Second Division consisted of the regular members and in
addition Referee C. Robert Roadley when award was rendered.
( System Federation No. 21, Railway F~nployes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Southern Railway Company
Dispute: Claim of Employes:
1. That under the current Agreement Cayman W. H. Turner, Macon,
Georgia was improperly suspended from service January
2, 1975
to February 1,
1975.
2. That accordingly, the Carrier be ordered to pay Cayman
W.
H. Turner,
for all time lost from January
2, 1975
to February 1,
1975.
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 at hearing thereon.
Claimant was suspended from service for a period of four
(4)
weeks,
following formal investigation held on December
27, 1974,
for his failure to
comply with instructions contained in Bulletin No. 48, dated April
29, 1974,
concerning the securing of chains on freight cars, loaded or empty, for tra=_n
movement. The pertinent portion of Bulletin No.
48
reads as follows:
"In the future, any surplus chain not required to secure a
load will be placed in the pocket provided or secured to the
car or trailer in a manner that it cannot come loose and drag."
The remainder
a
the bulletin deals with procedure in the event of
empty cars or trailers that are chain equipped or where no pocket is
available. In the instant case the car (Sou
114383)
was loaded with l=ber
and was chain pocket equipped. The chains that were alleged to have been
improperly secured were not used in the chain-dorm load.
Form
1
Award To.
7237
Page 2 Docket No.
7105
2-SOU-CM-'
77
Claimant was employed as a Car Inspector at the Carrier's Brosnan Yard,
Macon, Georgia, and is the employee whose duty it was to inspect the chain
down load on the subject car and who filled out and attached tag Form
1033
certifying that he had inspected the load and approved the shipment for train
movement. The car was inspected and certified on Decemb er 11,
1974.
On
December 1 4,
1974,
when the subject car arrived at Charlotte, '_`I . C . (approximately
350
miles distant from point of inspection), it was reported that a chain
-was dragging on the "B" end left side which damaged six
(6)
switches between
Charlotte Junction, TIP
380.8,
and Charlotte Yard, Au
376.5.
It is significant
to note that the damage to the switches is not the motivation behind this
dispute.
Petitioner has averred that the claim should be sustained on the grounds
that the carrier failed to meet the burden of proof, i.e. it failed to prove
by probative, objective evidence that the claimant did, in fact, commit an
infraction and that punishument was warranted. The rule is that there must
be substantial evidence in support of the Carrier's action..
It was pointed oat in Second Division Award
6419
that the substantial
evidence rule was set forth by the Supreme Court of the United States when
i t stated:
"Sucstantial evidence is more t~lan a mere scintilla. It
means such relevant; evidence as a reasonable :rind might
accept as adequate to support a conilusion." (Consol. Ed. Co.
vs. Labor Board
305
U.S.
197,229)
Further, this Board, in First Division Award
120,52,
stated:
"It must be true that the evidence at least must have
sufficient substance to support a reasonable inference
of fact as distinguished from a possibility or an
unsupported probability."
The Carrier cited Second Division Award
6396,
involving the same carrier
and Organization as the subject case, as being illustrative of the situation
at hand and urged a denial of the claim on the same principle as in that case.
The following statement appears i n the Findings
ire
Award
6396:
"The Carrier established that the load, authorized for movement
by the claimant, was not properly secured in accordance with
the loading rules knowledgeable as part of his job. He should
have ordered the car cut out of the train until the load thereon
had been secured in accordance -rTith the rules. Failure to do so
constituted dereliction of duty, warranting severe punishment,
according to the Carrier."
It is noted that the "severe punishment" assessed by the Carrier against
the employee in Award
6396
for his alleged "dereliction of duty" was a two
week suspension without pay, as opposed to the four weeks suspension here.
Form 1 Award No.
7237
Page
3
Docket No.
7105
2-SOU-CM-'77
In the subject case the claimant was not charged with having authorized
for movement an improperly loaded car, he was charged with having improperly
secured an unused chain on car Sou
114383.
The question as to whether the
car had been properly loaded in accordance with the Open Top AAR Loading Rule
was raised during the investigation but the matter
of
whether the car had
been properly loaded was not the su'pject of the charge against claimant, a
fine line of distinction perhaps but distinguishable nevertheless.
The entire Carrier case is predicated on the assumption that had the
subject chains been properly secured at the point of origin (Macon) they
would have sti.~.7. been so secured at the point of inspection (Charlotte), some:
350
miles distant. (See Carrier's rebuttal statement, pages
3
and 4, in the
record)
Carrier letter of May
27, 1975,
to the Organization, contains the
following statement:
"Evidence submitted at the investigation, which was not refuted
by representative of your organization, indicated that Mr.
Turner, the Car:ian charged with failure to properly carry out
his duties, had determined that the car was loaded properly by
attaching a valid Form
1.033
to the car. The fact that Mr. Turner
attached the card -to the car without having determined that the
car was loaded properly constituted a failure on his part to
properly carry out his duties."
There is nothing in the record before us of "sufficient substance" to
support the statement that
"...
Mr. Turner attached the card to the car
without having determined that the car -was loaded properly
"
(emphasis
added). On the contrary, the only statement in the entire record as to the
claimant's actions at the time of the original inspection is the statement
of the claimant himself, made at the investigation, when he said " .....
these chairs were secure on this car and T did my job properly performing
the inspection."
Second Division Award No.
6419
stated, i n part, as follows:
"We have af-'orded to management extensive leeway in dealing with
employees who malfunction or misfunction in the hopes that they
will respond and, thereby protect the industry; thus, preservi~ig
their own and their fellow workers jobs and avoid injury to
themselves and the public. (Awards
1575, 2996, 3081, 3430, 3874,
6346.)
However, this authority must be exercised with due regard
to the rights of the workers and in a manner consistent with the
terms of Agreements with organizations representing them. This
requires that disciplinary penalties imposed must be fair and
just.
Form 1
Page 4
Award No. 7237
Docket No. 7105
2-SOL-CM-'77
"The many Awards of this Board concerning imposition of discipline
have established cex~t;ain basic guidelines as to what the record
before us must disclose to satisfy the above stated prescription.
The burden is on the carrier to prove by probative, objective
evidence that the allegedly aggrieved employee did, in fact,
commit an infraction and that Banishment was warranted."
Based upon a thorough review of the entire record in this case, particularly
the transcript of the investigation, it is our opinion that the record does
not meet the standards of substantial evidence, as quoted in the Findings
herein, to prove that the claimant committed the infraction for which he was
disciplined. Therefore, the discipline assessed cannot be held to be fair
and just.
A W A R D
Claim sustained.
Attest: Executive Secretary
National Railroad Ad-iustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
cf
Second Division
By
''~isemarie Brasch - Admins trative Assistant
Dated( at Chicago, Illinois, this 4th day of March, 1977.