Discipline Bulletin No. 315, referred to above, reads as follows:

LOUISVILLE AND NASHVILLE RAILROAD COMPANY

Office of Superintendent

Evansville. Indiana

December 10, 1971

DISCIPLINE BULLETIN N0. 315

A Machine Operator has had his Rank 3 seniority taken from him for his responsibility in connection with damage to his machine and failing to perform all routine servicing and minor repairs

Award Humber 20222 Page 3

Docket Humber MW-20090

to keep his machine in a proper and safe operating condition, and not being able to operate his machine to obtain the quantity of the work the machine is capable of producing.

J. R. Parsons, Jr.

Superintendent"

The Organization herein contends that the charges against the Claimant were not supported by the evidence presented at the investigation and that, consequently, Carrier disciplinary demotion was improper, arbitrary, capricious and without ca received a fair and impartial investigation, that substantial evidence was adduced to prove Claimant's negligence and that the claim must accordingly be denied.

In Award 13179 (Dorsey) the function of this Hoard was enumerated in cases of this type, as determining whether: (1) Claimant was afforded a fair and impartial hearing; (2) the finding of guilty as charged is supported by substantial evidence; and (3) the discipline imposed is reasonable. There is no dispute herein regarding the fairness of the hearing; but the evidentiary question, and concomitantly the reasonableness of the d dismissed on the basis of this record.

As to the first element of the charges against Claimant, the uncontroverted record shows that there were no witnesses to the machine breakdown except Claimant. Claimant testified that he was running the machine on automatic and that the lining device was damaged by a tamper foot striking the above-mentioned grease fitting. The Carrier's service mechanic and the Plasser representative each testified that the damage to the lining device, in their a eat, could have occurred only by Claimant overriding the automatic features and manually depressing the squeeze pedal while raising the unit. (cZmphasis added.) These testimonial accounts are the sole evidentiary data in the record on the issue of causation.

It must be observed that the two Carrier witnesses on this point have a demonstrable interest in a finding that Claimant's account of causation of the damage is incorrect. This interest does not disqualify hem as witnesses but it does render their testimony subject to most careful. scrutiny. In this connection, neither of the Carrier witnesses were present when the damage occurred and their testimony as to whether Claimant manually overrode the automatic device necessarily is speculative and conjectural.

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Docket Number MW-20090

On the charges of failure to perform services and maintain production, Carrier presented testimonial evidence from the Mechanized Equipment Mechanic and others. The record discloses, however, that Claimant had operated the machine in question from December 13, 1969 until the date of damage on November 9, 1971 without oral or written complaint to him from the Carrier regarding his performance. Moreover, Claimants direct supervisor, Foreman A. L. Fingers, testified that Claimant's servicing of the machine and quantity and quality of work were satisfactory. Reverting to the evidentiary standards set forth in Award 13179 supra, we must conelude that the placing of responsibility for the damaged mac sustainable by substantial evidence. Nor does the evidence substantially support Carrier's finding t or production. Accordingly, part (1) of the claim must be sustained.

In part (2) of the claim, Claimant seeks, in addition to restored
status, payment at the operator's rate for all time, including over
time since November 10, 1971 until he is returned to operator's
status. Claimant apparently has been employed in another capacity
of the claim by his demotion. Accordingly, we will modify part (2)
by awarding that Mr. Hell's seniority as a Rank 3 machine
operator be restored and unimpaired and that he be paid the difference.
between what he would have earned as the operator of the tamping
machine assigned to Gang No. 151, including overtime, and what he has
earned as an employe of Carrier from November 10, 1971 until he is
returned to work as a Rank 3 machine operator with seniority as such
unimpaired.

FINDINGS: The Third Division of the Adjustment Hoard, upon the whole record and all the evidence, finds sad holds:

That the parties waived oral hearing;

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

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

That the Agreement was violated.

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Docket Humber MW-20090

A W A R D

Claim sustained to the extent and in the manner set forth in the opinion.

NATIONAL RAILROAD ADJMDUMT BOAFM

$r Order of Third Division

ATTEST: a Al'$

Executive Secretary

Dated at Chicago, Illinois, this 30th day of April 1974.

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