compliance with those instructions might have resulted in the same tragedy but that is a matter purely of conjecture and in no sense is justification for the conclusion advanced by the Brotherhood that the accident was an unavoidable one. However, the salient fact is, whether it be attributed to haste, carelessness, disobedience or emergency, that he was not pursuing a course of conduct in line with his instructions, which, if he had followed them would have relieved him from all imputations of carelessness, negligence or what-not and placed the primary responsibility upon the Carrier where it properly belonged. Failing in that, he assumed the consequences of his independent action-namely the possibility of being disciplined for failing to work properly and according to instructions. Admitting it, he placed himself in a position where he cannot now be heard to say there was no evidence on which to sustain the Carrier's finding discipline was proper.

There remains the question whether the penalty imposed-dismissal from service-amounted to an abuse of discretion. The rule to which this Division is committed is so well established that it requires no citation of our awards. It is that the Division will not substitute its judgment for that of the carrier in a matter of discipline unless it appears the latter's action is so clearly wrong as to constitute an abuse of discretion. Otherwise stated, the action of the Carrier must be found to be arbitrary, capricious and in bad faith if it is to be disturbed. In the light of the rule as established can it be said that the punishment imposed was so unfair, unreasonable and severe as to permit it to be set aside? It must be remembered that severity of punishment alone is not sufficient. Coupled with severity- must appear testimony from which it can be said the Carrier's action was arbitrary and capricious. A diligent search of the record fails to disclose any evidence of that character. Since it is not there we cannot substitute our judgment for that of the Carrier or disturb its action. Admittedly, as pointed out and strenuously urged, the discipline might have been lighter, particularly in view of his long record of service and the unusualness of the situation with which he was dealing when the accident occurred. On the other hand, fairness requires recognition of the fact the Carrier in determining responsibility and assessing discipline was dealing with a serious problem. It had just lost an employe for whose personal safety it was primarily responsible, under circumstances where the man who was doing the work which resulted in the accident admitted he had not performed it in the manner required by the instructions of the Roadmaster. For all we know the Carrier may have decided a severe penalty was necessary not only because of the conduct of the employe involved but also to insure future compliance with instructions and the safety of employes. It may have weighed all matters referred to and given them consideration in reaching its decision. Be that as it may, the question of severity of punishment, so long as it is not arbitrarily and capriciously imposed was for its determination. Therefore, under the circumstances of this case, even though it be conceded there were facts which should have been considered in determining its extent, we cannot say that failure to give those facts the force to which Claimant deems they were entitled constitutes an abuse of discretion on the part of the Carrier.

As we direct our attention to the other phase of this controversy we are confronted with an entirely different situation. The claim is that Foreman Berry's discipline was improper and unfair. With this we are inclined to agree.

It must be kept in mind that the rule to which we have heretofore referred has application only in cases where there was evidence to sustain the finding upon which discipline is assessed. It is never applicable when there is no evidence in the record to sustain the charges preferred. Here, the notice required Berry to attend an investigation to determine facts and place responsibility regarding a fatal injury to one Esquibel on February 18, 1944. Discipline of 00 demerits was imposed for his responsibility in failing to carry out his duties as supervisor and in assisting Section Foreman Perry in having men clear of possible danger during the time the work which rasulted in the death of the individual named in the investigation notice was performed.

No useful purpose would be served by relating the testimony in detail. Summarized, as we read it, it discloses the accident occurred on Perry's section and that Berry was merely assisting him on the occasion in question. Under such circumstances the former was in charge of and directing the work. Both employes so testified and the Carrier through the form of its questions to witnesses conceded that to be the fact. It further reveals that shortly after 4':00 P. M. upon arriving on the scene Berry left to procure some angle bars and did not return until about 6:30. The accident occurred around 7:05. At the moment Perry hit the bolt releasing the rails which caused it Berry's back was turned and he did not see that act or have an opportunity to observe whether others there were then clear of danger. Certainly, it cannot be said there was evidence to sustain the finding he failed to assist Perry in having men out of danger at the time. It may well be he failed to carry out his duties as supervisor, although in passing it can be stated we fail to find any direct testimony disclosing his duty was that of a supervisor under the circumstances, but if he did, the Carrier failed to establish such fact by evidence. All the record discloses is that he was there from 6:30 to 7:05 at a time when Perry was in charge. In fact his statement was, and no one refutes it, that when he returned all the work had been done except breaking the bolt. What he did or did not do, in failing to carry out his duties as an alleged supervisor and for that matter what he did or did not do in failing to have men clear of danger while the work was going on, can be determined from the record only through conjecture and speculation. That is not enough. It was incumbent upon the Carrier to establish the findings on which it assessed discipline by positive evidence. Failure to do that or when the case is brought here for review on charges of impropriety and unfairness failure to produce a record disclosing testimony of that character, is fatal and precludes the sustaining of its action.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the record discloses (1) no basis for disturbing the action of the Carrier in its discipline of Foreman Eugene Perry and (2) no evidence to sustain its action in assessing discipline of 60 demerit marks against Foreman W. L. Berry and that such demerit marks be removed and his record cleared.

AWARD