NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20569
Joseph A. Sickles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Bessemer and Lake Erie Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The suspension and dismissal of Carpenter T. A. Solla was
without just and sufficient cause, and on the basis of unproven and unfounded charges and therefore
320 (1-10-73 mw 2-22-73)).
(2) The Carrier shall reinstate Mr. T. A. Solla to service and
compensate him for wages lost - all in cuuformance with Rule 29 (d) of the
Agreement between the parties hereto.
OPINION OF BOARD: Carrier has raised a number of procedural objections
to this Board's consideration of the merits of the
dispute. The Carrier claims that this dispute should be dismissed because
the Claimant, as an individual, brought the case to the Board in Docket No.
MS-20558 and the Board dismissed the matter is Award No. 20627. The Car
rier asserts that the present dispute amounts to "double.jeopardy", and
cites numerous Awards in that regard.
Without disturbing the cited Awards, we feel that under the
facts and circumstances of this case, an Award on its merits may be rendered.
The notice to this Board in Docket :?o. M.S-20558 spoke in terms of
an "unfair labor practice", and the Carrier, in the prior docket, urged that
no dispute involving an alleged "unfair labor practice" had been handled on
the property. Rather the Carrier urged that the dispute handled and progressed on the property was t
Docl:ct.
The Board, in Award No. 20627 dismissed the claim because it was:
" ..novel or new to Carrier in that the theory of
violation it expresses has not been proferred to
Carrier in Conference on the property so that Carrier has had an opportunity to consider and respond
or react to it. The opportunity to adjust grievances on the property is a central part of the statut
presented, this Board has no altcruntive to a dismissal of the claim."
Award Number 20772 Page 2
Docket Number MW-20569
It is interesting to note that the final paragraph of the
Opinion of the Board in Award No. 20627 contemplated Carrier's defense
in this dispute. That paragraph stated=
"Nothing said here is intended to have any affect
on Case 320 jIW-2056, referred to above, should
it reach the Board for adjudication."
Concerning the merits, we note that on a number of consecutive
work days, Claimant refused to perform certain climbing-on a bridge - whLch
was necessary in order to perform his work. Although the record contains
suggestions that Claimant's refusal dealt with matters of safety, we are
compelled to hold that the prime cause for Claimant's refusal dealt with
a fear of working in the open at significant heights. The initial refusals
to work resulted in varying degrees of suspension and the final refusal
resulted in the termination now befure
us.
The record indicates that there
had been refusals previous to the consecutive work days material to this
dispute, and that Carrier had suggested to Claimant that he be concerned
with his inability to climb.
It is, indeed, unfurtunate that an individual may develop an
acrophobia which i.iterferes with his ability to perform his services. Hawever, it appears that Clai
was aware of that fact when ha assuwed ewpluyment. Under the circumstances,
we have no siternative but to deny the claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
eau all t=Le evidence, fists 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 Poard has jurisdiction over
the dispute involved herein.; and
That the Agreement was not violated.
A W A R D
Claim c:unied.
rATIONAL RAILROAD P_DJUSTMENP BOARD
By Order of Third Division
ATTEST:--Y
S-2
&I
Executive seciecary
Dated at Chicago, Illinois, this 18th day of July 1975.