The policy of your division in respect to cases of discipline was established early in its existence. That policy, contained in the above awards, and applicable to the instant dispute, continues to be consistently supported by later awards. To assent to the employes' demands in this case would constitute an unwarranted encroachment on the power to discipline or dismiss which properly rests with the Carrier.

The claim is entirely without merit and should be denied.

All data contained herein has been presented to the employes.

(Exhibits not Reproduced.)

OPINION OF BOARD: Claimant A. R. Eggleston held seniority as a Bridge and Building Foreman since September 29, 1945, on the Carrier's Iowa and Dakota Division. (Emphasis ours) He also held seniority as a Painter Foreman in the Bridge and Building Subdepartment on the District (again emphasis ours) comprising Carrier's lines East of Mobridge.

On May 4, 1955 Claimant while on a six months' leave from his B&B Foreman position on the division took a job as paint foreman on a bridge job in St. Paul, and while on that job his crew was spray painting a bridge, and a high wind came up and blew some of the atomized paint on to a string of automobiles parked nearby to the damage of the Carrier of $1200.00. For this he was investigated under the discipline rule and in due course was advised on May 10 that

"Because of your negligence on May 4th, permitting your crew to spray paint Bridge L-324 s/z in St. Paul when the wind was of such intensity that it carried the paint over 100 ft., damaging the paint on over 30 automobiles, you are today released as Foreman of Steel Bridge Paint Crew PT No. 1.

"You may if you wish bid in as a carpenter on the Division that you have your seniority rights on."

On June 6, 1955 the Claimant exercised his seniority on the carpenter's job.

This demotion was later protested by the Organization, without avail, and in due course is before us.

Carrier concedes the dual seniority of the Claimant, but insists that as a result of the investigation it was disclosed that Claimant was not fit to continue to serve as a foreman in any capacity relying on the definition Rule 46, Classification, Section (a) provides that:

"An employe who, in addition to his other duties, directs the work of men and reports to officials of the Railroad will be designated as a foreman."

and argues therefrom that unfitness as foreman in one capacity justifies the conclusion of unfitness in all capacities as foreman, and argues in support of the discipline imposed that it

"* °` * was not without reason or proper cause, was not harsh (emphasis ours) or severe, nor was it imposed arbitrarily."

Employes insist, however, with considerable justification that

"Seniority acquired on a district is separate and distinct from seniority acquired on a Division."

and rely on that portion of Rule 5 (h) NOTE: 1, which says Employes holding rights in division B&B crews

"will also retain pre-existing seniority on the division"

But the difficulty with that is that paragraph 6 of that same note says:

"The provisions of this NOTE do not apply to employes in steel bridge crews."

Whatever seniority Claimant had, he certainly was an employe ix. a "steel bridge crew" at the time of the investigation.

Employes do not attempt to meet this last provision, but rely on Award 6135 wherein we upheld a claim in a somewhat similar situation and said that the discipline imposed was .too "harsh."

We feel the same way about this case. We do not feel that Claimant should be penalized unduly for what happened on that 4th of May when there was a quick shift in the wind (testimony is even in sharp conflict as to which way the wind was blowing) after Claimant had taken all reasonable precautions against the atomized paint being windblown. Even the Carrier's Engineer when asked if Claimant had taken all the precautions he could answered in part.

"Perhaps some immediate action could have been taken to clear the paint from the cars before it had a chance to set." (Emphasis ours)

No suggestion is made as to what Claimant could have done other than he did (putting up the canvas on the fence to protect the cars) to guard against a sudden change in the wind. While the U, S, Weather Bureau reported a wind of 20 miles an hour at 8 A. M. and 23 miles an hour at 9 A. M., the Claimant stated that at 8:30 A. M.,

"what little breeze there was blowing directly from St. Paul to Mpls."

Mr. Kruse, Carrier's chief carpenter when asked

"In your opinion how fast was (would). the wind velocity have

to be to carry paint this far (well over 300 ft.)"

"* * * 30 to 35 MPH depending upon the course of the wind."

The highest velocity of the wind on that day as reported by the U. S. Weather Bureau was 34 M.P.H. at 10 A. M., which was around the time that Claimant told the crew to stop spraying, and it did.

There were no specific instructions given to Claimant except

"* * * the importance of being careful not to spray during windy weather * * *"

and as already noted it was suggested that "perhaps" he could have done something else.

We are not overlooking Carrier's strong reliance upon Award 8681, but in that case Claimant was an habitual drinker which would disqualify him from any employment on the railroad.

Even assuming there was an element of negligence (which we do not concede) in Claimant's performance on this paint job, it bears no reasonable relationship to his ability to perform the duties of the B&B foremanship which he seeks reinstatement to. It may also be noted in Award 8681 we said the

"* * * disciplinary action was not without cause, as the record clearly shows."

Under all the circumstances we feel that the portion of the claim seeking reinstatement should be sustained, but since Claimant has been in the continuous employ of the Carrier pending this Award the claim for wage loss is denied (Award 6135 supra).

In conclusion we will say that Carrier violated the Agreement only to the extent that the penalty imposed was too harsh because Claimant admitted that his investigation had "been fair enough."

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 Carrier violated the Agreement as indicated in the Opinion.

AWARD