STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:


        (1) The dismissal of Welder Helper S. J. Schmidt for allegedly violating "portions of Rule 801 and 810" was without just and sufficient cause and on the basis of unproven charges (System File 011-181 (S)).


        (2) Welder Helper S. J. Schmidt be reinstated with seniority, vacation and all other rights unimpaired, his record cleared and that he be compensated for all wage loss suffered in compliance with Rule 45(b).


        OPINION OF BOARD: This is a discipline case in which the Claimant, a

        Welder Helper, was dismissed for violating Rules 801 and 810 of the Bides and Regulations for the Maintenance of Way and Structures. The gravamen of the lengths from his post of duty and that such was an unsafe neglect of duty in view of the character of the work being performed. The Employees attack the discipline both on pr


        The Employee's first procedural point is that the Claimant's due process rights were violated, because the hearing officer who took the testimony and observed the witnesses did not render the disciplinary decision. The record fails to s the Claimant resulted from this fact and, accordingly, we find no merit in this contention. Another procedural objection is that the Claimant's prior record is not properly before this Board because it is mentioned for the first time in this dispute in the Carrier's Submission. Arguably, the prior record was touched upon in a letter of Carrier's highest officer which referred to the "number oP occasions on which he had been instructed". However, this reference is to official record. Also, the reference more logically applies to instructions on how to perform duties rather than to a prior official record and we, therefore, conclude that the Claimant's prior record is not properly before the Board.


        The Employee's merit argument requires a review of the incident from which the dismissal resulted. The hearing record shows that the Claimant was part of a crew eng string of 35 flat cars. The first step in the loading operation is that, as rails are connected by welds, the finished product is pushed onto the


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              Docket Number MW-20470


flat cars. This pushing effect is accomplished by pressure which causes the ribbon of rail to move onto and over the bed of flat cars at about 3 miles an hour. The forward movement of the rail is stopped intermittently, for five minute inter Each flat car is equipped with a roller stand through which the rail is moved forward or backward, as the case may be; a safety button at each stand will stop the entire operation upon its activation. A critical element in the operation involves a device called a "rabbet", which is a square piece of cast metal with a point at the end. The rabbet is attached to the forward end of the point will thread the rail through the rollers as the rail is pushed forward. The Claimant's Dart of man and to guide the rabbet through each roller. The operation in this instance was loading two rails simultaneously, with the Claimant serving as point man on one rail and another employee serving as the point on the other rail.

 Shortly before 2 p.m. on August 31, 1972, the Welding Inspector, who was in charge of the operation, observed the Claimant about 3 or 4 car lengths away from his rabbet; the Claimant was sitting down talking with the other point man. The Inspector testified that, upon asking the Claimant "where was his rabbet and why wasn't he with it", the Claimant gave no answer and walked towards his rabbet. The Inspector further testified that the Claimant would be unable to see his rabbet from where he was sitting, and that his proper position was to be at the point of the rabbet or within one roller assembly ahead of or behind it. The Inspector stated that the duties involving the rabbet had been discussed with the Claimant numerous times, including coverage of the subject at safety meetings attended by the Claimant. It was brought out that the rabbet requires close attention because it could easily malfunction, causing an accident or buckling so suddenly that a person could not get clear sufficiently soon to avoid serious injury. The foregoing was corroborated by another Welding Inspector who observed the incident. This witness also stated that the Claimant was within 4 to 5 feet of a safety button, which would have permitted him to stop the rail if necessary; however, he, too, said the Claimant could not see his rabbet, as his line of vision was obscured by the roller stands. The Carrier's written instructions on how to follow the point of the rabbet were made a part of the instructions on the same subject were posted by the Carrier on the day following the hearing.

 Except for asserting that he was right beside a safety button and that his view of the rabbet was not obscured, the Claimant admitted the factual part of the testimony of the two Welding Inspectors. However, as he interpreted the fact respect to the rabbet. He said he was where he was supposed to be before the rail made its last push and that, since the rail was stopped, he had no need to be in a different location; the situation required him to move forward to prepare for the next push, which he was about to do when the
              Award Number 20306 page 3

              Docket Number MEd-20470


Inspector arrived. The Claimant also stated that the Carrier had not been consistent or clear in issuing instructions about the duties of the point man, and that there was no uniform standard for performing the duties.

 On these facts the Employees argue that: (1) the hearing evidence does not support the Carrier's were inadequate; and (3) the penalty of dismissal is excessive, as evidenced by the Carrier's offer to reinstate the Clai drawn; hence, this offer is not part of our considerations.) With respect to the hearing evidence, it may be true, as argued by the Employees, that the two Inspectors could not say with certainty that the Claimant could not see his rabbet from 3 or 4 car lengths away; however, there was no uncertainty in their opinions about what they thought the Claimant could see and the Claimant's contra statement does not invalidate their testimony. The Claimant's own admi charge and such admissions, coupled with the Carrier's evidence, constitutes substantial evidence of With respect to the written instructions, the Employees are on more solid ground. The critical duties of the point man, as described orally at the hearing, are not even suggested in the texts of the pre-hearing instructions, whereas such duties ar post-hearing instructions. Moreover, the inadequacies and confusing nature of the old instructions were forcibly confirmed by the Carrier's posting of new, detailed instructions immediately after the hearing in which the old instructions were challenged. While these considerations do not fully excuse the Claimant's actions, because his admissions made a sufficient case to warrant discipline, we conclude that the inadequacies of the old instructions, and the fact that the old and the new instructions do not remotely resemble one another, constitute important mitigating facts in the total context of this case. We shall therefore award that the Claimant be restored to service
        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


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
              Award Number 20306 Page 4

              Docket Number MW-20470


Discipline was warranted, but the quantum thereof should be reduced because of mitigating facts.

                      A W A R D


Claim sustained in part and denied in part. The Claimant shall be restored to service with all rights unimpaired, but the Claimant shall not receive a
              NATIONAL RAILROAD ADJUSLkENT BOARD

              I~ By Order of Third Division


ATTEST//:
        Executive Secretary


Dated at Chicago, Illinois, this 28th day of June 1974.