THIRD DIVISION
(Supplemental)
NORFOLK AND WESTERN RAILWAY COMPANY
(Lake Region)
OPINION OF BOARD: The record in this case discloses that Claimant, on the date involved herein, was 60 years of age with service dating from June 17, 1929 (37 years); that Claimant held seniority as a Carpenter-Truck Driver and was assigned to Carpenter Gang 202. The record further discloses that Claimant's past record was unblemished. Carpenter Gang 202 had been assigned the duty of painting Bridge 128.14. Claimant had been painting panels of the girders on this bridge, but never at a height of more than 6 feet with scaffolding. On Monday, November 28, 1966, Foreman Gee instructed Claimant to paint at an area on the bridge which required him to be in excess of 30 feet off the ground. Claimant refused to paint at this height, and Foreman Gee then requested Claimant to sign a resignation slip, which he (Claimant) refused to sign. This action resulted in removing Claimant from service pending an investigation. As a result of the formal hearing on this matter, Claimant was suspended from service for a period of thirty (30) days (November 28, 1966 to December 27, 1966, inclusive).
A review of the transcript of testimony taken at the formal hearing reveals that Claimant was a victim of acrophobia, which is defined in Webster's Dictionary as "a morbid fear of being at a great height." This testi-
mony has led the Organization to contend that Claimant's refusal to perform this work was justified in the interest of safety for fellow employes as well as the Claimant himself. There being no evidence to the contrary, it must be assumed that Claimant did have a morbid fear of height.
Carrier contends that Claimant bid on this particular position; that it could be or should have been anticipated that the position would, at times, require painting on scaffolds at substantial heights; and that, therefore, Claimant should either assume the inherent risks of his position or suffer the consequences. This Board cannot agree with this contention. The record is completely void of any showing that similar work at this height had been performed in the past by the employes of this particular class. Carrier offers Award 16104 (House) as authority. That award is distinguished from the instant dispute for the reason that Award 16104 involved employes who had worked a long number of hours, and refused to continue the same work that they had been performing all day; that the employes were "tired out" and did not qualify for the "safety exception."
In this case, there is no showing that Claimant ever performed work at such height prior to the date involved herein; no showing that the work Claimant was instructed to do was inherent to his position; and no showing that Claimant acted with indifference to authority or displayed a rebellious attitude.
To the contrary, the record shows that there was other work Claimant could have been doing, such as clean-up work, or painting the top of the bridge. The fact that this employe was allowed to return to the same position at the termination of his suspension, after learning of his acrophobia, is persuasive to the finding that he (Claimant) could handle the normal duties of his position.
Absent evidence to the contrary, this Board finds that Claimant was and is a victim of acrophobia; that an attempt of Claimant to perform the painting from a substantial height would have subjected himself and his fellow employes to danger and unwarranted personal injury, and that Claimant's refusal in this instance was, therefore, justified. See First Division Awards 13118, 14266, 15532, 17398; Second Division Award 2540; and Third Division Award 14067.
FINDINGS: The Third Division of the Adjustment Board, 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