STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The demotion of Section Foreman W. T. Price and the restriction of his services to Section Laborer was not based on just and sufficient cause.
(2) Claimant W. T. Price be restored to his former position as Section Foreman with seniority and all other rights unimpaired and be compensated for all wage loss suffered because of the violation referred to in Part (1) of this claim.
OPINION OF BOARD: This is a discipline case which we review as an appellate forum. The scope of our review is limited to: (1) was there a fair and impartial hearing on the property; (2) are the findings made on the property supported by substantial evidence; and (3) if the employe is found guilty as charged, was the discipline imposed reasonable. We do not weigh the evidence de novo.
Substantial evidence is that material and relevant evidence which if credited by the trier of the facts supports the findings made on the property.
Claimant was employed by Carrier as a Section Laborer in July, 1926. He was promoted to position of Section Foreman on August 16, 1945. On November 2, 1954, he was demoted to Section Laborer. Effective July 15, 1955, he was restored to position of Section Foreman.
On August 31, 1961, Claimant was assigned as section foreman on Carrier's Sheridan Division headquartered at Osage, Wyoming. His section was 17 miles long extending between Mile Posts 531 and 548. On that date Claimant was in charge of a section gang consisting of himself, as foreman, and two section laborers. The gang was raising track on a curve between Mile Posts 544 and 546 which extended for a distance of 1,318 feet. Eastbound trains approach this as a left-hand curve while on a descending grade of .80 maximum
At the point involved there was a low spot Ys" to §'s" in depth requiring the rail to be jacked up and ballast tamped for 75 feet on the inside and 156 feet on the outside rail.
The crew commenced working at 7:30 A. M. At 9:15 A. M. the Track Supervisor was at the location and made no comment as to the manner in
which the work was being performed. By lunch time ehe crew completed raising the track on the high side. After lunch they began on the low side and by 2:45 P. M. it had been raised but some ties remained to be tamped. Extra 374 East was due to pass shortly thereafter. Section Laborer Avina, one of the gang, was asked by Claimant to examine the track before the train arrived. His unchallenged testimony as to his observations and what he reported to Claimant is:
"314-Q. Mr. Avina, were you one of the section laborers assigned to work with Section Foreman Price on August 31, the day of the derailment?
"318-Q. Have you worked with Mr. Price since he took the Osage section ?
"320-Q. Did you hear the statement made by Mr. Day in which you had told him that prior to the time this Extra 374 East had arrived, that you were working with Section Foreman Price, and that he, Section Foreman Price, had asked you to look at the track and asked you to note it?
"321-Q. Did you also hear the statement made by Mr. Day that you informed Mr. Price that there was a bad kink in the track and that he better stop the train?
"323-Q. When you told Section Foreman Price that you thought the track was bad enough to stop the train, what did Section Foreman Price tell you?
"324-Q. What did you do or say when Mr. Price said it wasn't so bad that the train could not get over it?
A. I tell him all right but for me it is pretty bad. I look at spot and I tell him he better stop the train. 13124-3 413
Notwithstanding Avina's report Claimant took no action to stop or slow Extra 374 East. The train, with 58 cars, proceeded through the area at 45 miles per hour and 33 cars were derailed; 24 were a total loss.
After investigating the derailment Carrier sent the following letter to Claimant under date of September 26, 1961:
Thereafter, on October 13, 1961, a hearing was held at the request of Claimant following which the disciplinary action taken was affirmed.
There is uncontroverted evidence that the gang had raised the outside rail over the proper elevation at six different points which brought the ties out of the ballast between '/s and % inches more than necessary to eliminate the depression; and, despite this Claimant used the same ballast and made no effort to procure additional ballast. Claimant admitted raising the outside rail over the proper elevation and testified:
Concerning his responsibility to have sufficient ballast to hold the track, Claimant testified: