PUBLIC LAW .OARD ??0. 542


Parties: United Transportation Union
 and
 Pittsburgh, Chartiers and Youghiogheny
 Railway Company

                    .Statement of Claim:: "Request for reinstatement with full my for all time lost by claimant S. C. Wisnie·wski from date of dismissal (September 11, 1963) until restored to service with seniority unimpaired and all vacation, insurance, promotion rights, if any, and pension rights returned. to former status."


Discussion: The operative rules in this case are the

                    fell-:;bin; which state in part:


                      "Article 5 - Investigations"


                    "(a) So far as practicable, Yardnen gill to


finished work or just prior to reporting for work. Yardmen required to report under above provisions or during layover time to give information at investigations or hearings where they are not at fault, will be aid for time so held..."

 "Article 6 - Trial of Yardmen and Srritchtenders"

 "(a) No Yardman or switchtender a=ill be
 suspended, reduced, changed from run or
 discharged without just and sufficient cause
 and will be riven a fair and impartial trial
 within fifteen (15) days from date of
 offense..., and if found not Euilty, will be
 paid such wages as he would have earned durinm
 time of suspension; and. if found guilty and
 he is suspended or discharged and it is -
 afterwards proven that he is not guilty, he
 will be reinstated and paid for time lost.
 Notice of suspension, discharge, etc., shall
 be in writing, static:; time of suspension
 together with charge. Yardmen and switch
 tenders will not be held off duty pending
 minor investiations.

                                            PL 9 5L! a


                          -2- Award No. 1


                  "(b) Trainme_z d.r yardmen, working under the provisions of this agreement, %-ill be notified in --ritin,-,, the nature of the charge, which will contain full and clear statement of the charges, and- may have the assistance of any member or members of the committee, if they so desire.


                    (c) ..:

                    (d) ...

The Claimant ryas a trainman with seventeen years seniority at ';,he time of his dismissal from service of carrier. On Aucust 20, 1968 the Claimant suffered an injury to his right shoulder ::vile attempting to operate a cutting lever. An Investitat,ion was held on August 30, 1968 in connection ..!ith the August 20th injury. A Trial was held on September 3, 1968 and on September 11, 1968 the Claimant eras notified that he was dismissed for: (1) violating General Rule 1 of the Carrier's Book of Pules requiring "Employees must exercise care to avoid injury to themselves and others" and (2) being an unsafe employee as evidenced by twenty-two personal injuries since his employment in
 1951. At the September 3, 1968 Trial, the Claimant did not
 answer any questions or make any statements at the direction of
 his representative.

                  Carrier's Position

The Carrier contends that there is sufficient competent evidence to support both charges levelled against the Claimant. It notes that the claimant did not exercise proper care in attempting

                                              PL a .gqa


                          -3^ Award No. 1


to operate the cutting lever. The 'Claimant had been a Trainman since 1951, and it is a standard and common function for a Train., man to operate cutting levers. He should have. been aware tkiat at times cutting levers can be hard to operate and on occasions may be defective. On these occasions extra care has to be taken to avoid injury. The evidence shows that, alt,hough the Claimant had difficulty in operating the cutting lever, he, nevertheless, made repeated efforts to operate the lever, resulting in his shoulder injury. The Claimant's personnel record shows that he has sustained sir. injuries from 1955 to 1967 while attempting to operate cutting levers, opening knuckles, adjusting couplers, releasing hand brakes or throwing switches. This past experience,, should have nut him on notice of the great care that has to be exercised to avoid injury in train operations.
 Concerning the second charge, the Carrier states that, while it would not have dismissed the Claimant solely on the first charge, when his total injury record is analyzed, there can be no reasonable doubt that the Claimant was an unsafe employee. He had suffered twenty-two injuries since the initial date of employment. He had lost considerable time away from employment and had received direct or court settlements in seventeen of these injuries. The Carrier was now facing a $50,000.00 court suit for injuries suffered in a June 13, 1967 accident. The Carrier states that the Claimant's conduct shows a repeated pattern of injuries and. there has been no improvement in this aspect.
 Award No. l

 throughout his employment career. He has proved himself to be accident: prone and bereft of ordinary caution in the performance of his dutics. :?e has acted in such a way as to be a hazard to his fellow employees as well as to himself. His conduct is potentially very 'costly to the Carrier.

 The Cara·ier also denies that there was anything improper in holding both r:_Z Investigation and Trial.. This procedure is provided for by the collective bargaining agreement and it does not place the C7=.im:ant in double jeopardy. 7'he Carrier is entitled to seek to asc::rtai.n facts concerning accidents and injuries in order to determine. whether the Claimant should stand Trial. The

 it has, i=7 the ~~' cn2 r us-ed the In-

 vestigation as t'=a forum to assess culpability and discipline - but its action cannot be construed as a waiver of a clear and unequivocal contract provision.

                  Organization's Position

The Or,-:c.nization maintains that the diseipli nary proceedings were fatally defective because the Carrier placed the Claimant in double jeopardy by subjecting him to tyro identical proceedings for the same offense. The Carrier, in candor, m·zst admit that the practice on this property was to hold only one proceeding, called an Investigation. An examination of the. transcripts of both proceedings frill clearly reveal that the Claimant was subject to tyro trials. There was no other basis or reason for reviewing the Claimant's past service record at the

                                            PLa .~a


                          --5^ Award IQo. 1


Investigation, if the sole purpose was to develop facts about the personal injury on August 30, 1968, ,The Carrier's conduct at this Investigation shows that it had already prejudged the Claimant and eras using every possible means to terminate his employment - just cause or not.
 Substantively, the,OrEan.ization states that there is no competent evidence to prove that the Claimant ·.-ras guilty of any su-h violation resulting in personal injury. The Claimant had no way of kno~:ing that the cutting lever was defective. He had no
 -ray eyes" t0 detect the faulty mechanism in its steel housing. All the evidence showed eras that there :-;as a defective cutting lever and that the Claimant eras injured.. This does not establish anv violation of Rule 1. The Ora-anization stresses that this Carrier employs no car inspectors and that all car inspections are made by outside carriers.
 The Organization further states that employees are "dammed if they do and dammed if they do not." If they fail to report, even a minor injury, they are subject to discipline. If they do comply and report, then they are subject to being charged with being accident prone: A large measure of the accidents which occurred are due to defective equipment which the' Carrier has not repaired or replaced, despite repeated protests. Railroading is a hazardous occupation and the Carrier has not cooperated to reduce the inherent risks.
 The Organization states one, that there is no evidence of culpability on the part of the Claimant in the incident which

                                            p~ Q rya


                          -6- Award iio. 1


gave rise to the investigation and·Trial, and secondly, many of the incidents rerorted on the Claimants's service record. are incidents r!hich irould ordinarily be overlooked except for the fact that the Carrier is note making a determined effort to ;et rid of the Claimant despite his long years of service.

 Finding: The Board, upon the whole record and all the evidence, finds that t%:e employee and carrier are Employee and Carrier within the meaning of the Railway Labor Act, as amended; that the Board has jurisdiction over the dispute, and that the parties to the di srute ::ere given due notice of the hearing thereon.
 The Board finds that, upon the record of this case, the Carrier had just and sufficient cause to dismiss the Claimant from its service. The Board must admit that the evidence is inconsequential to prove that the Claimant was guilty of failing to act with reasonable care and prudence to avoid the accident on August 20, 1968, resulting in a shoulder injury. Had this been the only charge against the Claimant, it would not have supported the disciplinary sanction of discharge.
 But when the Board considers the second char ;e, namely, that the Claimant has been an unsafe employee since the date of his employment, it must find that the Carrier`s determination, that this charge -was supported by the employee service record, is not an unreasonable determination, and this total record does not brand the Carrier's finding as capricious or arbitrary. Of necessity, a considerable period of time must pass before-a
                                            PLd 5qcQ


                          -7- Award No. 1


Carrier can make an effective and'meaningful judgment as to whether a given employee has evidenced or displayed a propensity for incurring injuries, which indicates either an inability or a disregard of appropriate operating or safety rules. The Carrier is entitled and even required to determine whether it car. permit such an employee to retain it its service in order to protect and safeguard the employee, his fellow employees, its property and the property entrusted to its custody as a common carrier. .
 'When the Bard examines the Claimant's service record it finds that ae has been involved between 1952 and 1967 in a substantial number of accidents arising from train operations with the exception of tha incirlt-.nt on Aug»st 1,6, !9f;L. when a fnrai~ object flew into his eye while riding cars in McKees Rock Yard. Many of these injuries necessitated prolonged absences from work,
 such as the injury on June 22, 1955, November 10, 1955,
 March 20, 1962, December 17, 1964 and June 13, 1967. Other injuries have subjected the Carrier to expensive litigation. The Carrier after fifteen years of this sort of experience can properly determine that an employee, who has been involved in twenty-two incidents resultin.- in personal injuries, is an accident-prone employee whom it cannot afford to retain in its employ. Without passing judgment on each and every item on the Claimant's service record, the weight.of the record indicates that the Carrier's action was not arbitrary or unreasonable.
          With regard to the procedural objections interposed by

                                              PL 19 514LQ


                          -8- Award No. 1


the Orgganization, the Board muss find that while in some instances they have merit, they, nevertheless, do not constitute reversible error. In the first place, the Carrier cannot be held to have committed material error when it followed clearly outlined and delineated contractual provisions providing for both an Investigation and Trial. It :-:bull be a strange holding to state that adhc^rin- to provisions set forth in a voluntarily agreed-upon contract, was a fatal procedural error. Conceedin; that the Carrier did not always hold both an Investigation and Trial, such intermittent Carrier action cannot be held to be a forfeiture or an abolishment of clear and unequivocal contract provisions. The practice is not that prolonged and extended so as to constitute the repudiation or waiver by the Carrier of these relevant contractual nrovisions. The Carrier would be well advised hereafter to confine the Investigation solely to determining facts concerning the causes of the incident under investigation and omit such matters as the introduction of the Claimant's service record - but this introduction of the record was not a material error - even though irrelevant at this proceeding.
 The Board must conclude, after reviewing both the substantive and procedural objections interposed by the Organization
                                              PL a 5Na


                          -9- Award No. 1


that they do not constitute a valid basis for setting aside the discipline imposed against the Claimant.

 AWARD: Claim denied. J

          Jaco: Se,,·idenbere, Chairman arc Neutral Member


_ ://-~_.. ,:err G ~, _ _.


G. l;. Legge,~%ialoyee Member W. J. Petrie, Carrier Member

      m ti , 1

    >'1_~' 1e1 ·: :vil~ (~

                                                  I


                PUBLIC LAW BOARD NO- 542

                                                  i


Partiese United Transportation Union and
 Stanley G. Wisniewski
 and
 Pittsburgh, Chartiers and Youghiogheny RR Co.
 This Public Law Board was reconstituted on November 21,
 1973, by the National Mediation Board and the Chairman was authorized to be
 the Third and Merits Neutral Member of this Public Law Board, by the N. M: B.
 The chronology of events both antedating and subsequent
 to November 21, 1973. is as followsi

              Ausst 20, 1968 - Claimant Wisniewski, a trainman then with 17 years seniority, suffered an injury to his right shoulder atteiapting to operate a cutting lever.

              I September 9. 1968 - Carrier held a duly noticed trial as a result of this incident.

                                                  I


              Seatenber 11, 1968 - Carrier dismissed Mr. Wisniewski for having violated General Rule I of Carrier's Book of Rules, failure to exercise care to avoid pereonall injury on August 20, 1968, and for being an unsafe employee as evidenced by 22 personal injuries since his initial date of employment, May !0, 1951·


              January 9, 1969 - Carrier's hir.hest officer desiCrafizld to hear appeals denied Organization's appeal, seeking' to have Claimant restored to service.


              March 10, 1970 - Parties established Public Law Board tic. 5l·2 and selected Jacob Seiderbbero, Esquire, to beg the third and neutral member of Board.


              Aril 22, 1970 - National Mediation Board issued official certificate of appointment to Jacob Seldenberg, Esquire, to c=_ the third and merits Neutral ilembor of the Board.


              July 1, 1970 - Public Law Fcard convened and heard arguie::t on the claim of Mr. Wisniexski.


              $eDtnnler 22, 1970 - The Foard, by a 2-1 vote, denied the clad, ca the Frould that while the char,a that the Claimant had failed to act with reasonable rare and I prudence was not conclusively proved, the other charge,


                                                  I

                            PL r3

                            ~I u~cLr~ I


          _2_


i.e., that the C1a.Lvant had been an unsafe employee since the date of his employment, was supported by the employee's service record. It held that the Carrier had therefore not acted arbitrarily when it removed the Clainant from service on the basis that he had incurred 22 injuries between 19$2 and 1967-
 5

 July 5. 1972 - The Claimant filed an appeal from this,
 Award in the Federal Court, Western District of Pennsyl
 vania, requesting that the Court reverse the Public Law
 Board and reinstate the Claimant.

 February 20, 1973 - 'the Federal District Court remanded the case to the Public Law Boa..-d "so that the Board might receive evidence related to the accidents in which the retitioner was involved, refuting or establishing whether he is an unsafe employee."

 Subsequently, the Claiznant re-petitioned the Federal District to rsconsider its Fe1:ruar^; 20, 1973, Order and instead order the Carrier to re-instate the Claimant because the Award of the Public Law Board "lacked foundation in reason and fact and exceeds the ,jurisdiction of said Board."

 Arril 13, 1973 - The Federal District Court denied the Claimant's request and ordered that the Board be reactivated for "the rur__rose of con: iderin;; 7 .1 perti nent matters bearing on the plaintiff's dismissal. A full and complete opportunity shall be afforded the parties to offer testimony related to the issue of his dismissal based on his invclvament in twenty-two accidents,"

 October 30, 1973 - The United States Court of Appeals for the Third District denied appellant's appeal because the District Court's Order was not a final. and therefore not an appealable order.

 Nover:lcer 29, 1973 - pursuant to the rational Mediation Board's Letter of Novcmber 21, 1973, reactivating Public Law Board, the Neutral Member wrote to the partisan mWmbers suF:ffestin` that the L'oard reconvene on January 24-25 1974. The partisan members agreed to these suggested dates,

 Januar^r 3, 1974 - The Neutral Menber wrote the partisan members to send him their resrective submissions, on or before January 19, 1974, which request the parties compliod w'th.
                                          PL r3 5q9 r~ wa.~d


                      -3-


                Janw:7t 24. 1974 - The Public Law Board convened and heard argument based on the respective Submissions and facts of the case. The Organization argued that the Award should be set aside because the original trial or the Clatnant violated !trticle 6 of the then applicable Agreement in that said Trial was held mere than 15 days after the last of the previous 22 accidents. The Organization also objected to the Board considering matter on the 22 accidents as being extraneous to the record upon which the discipline was based. It also contended that it was not able to analyze at this tine all the data. on the 22 accidents submitted. It also raised a cuestion as to whether it was being furnished all the statements contained in the records dealin.- with the 22 accidents. After hearing the Organization's position, the Board issued an Interim Order granting the paT ties the privilege of submitting written replies by March 1, 1·;(4, to the Suhaissions presented to the Board at the January 24, 1974, Hearing, with the further privilege of filing, by March 15, 1974, written answers to said written replies.


                February 28, 19'74 - The Carrier wrote the Neutral eeaber of the Board that it did not wish to file any written reply to the Organization's Re-submission.


                March 1, 1974 - The Organization filed a written Answer to the Carrier's Re-sutraission.


                March 15, 1974 - The Carrier filed its Reply to the Organization's Answer to the Carrier's Re-su'haission.


                    Carrier's Position

The Carrier contended that the Organization was in error in its procedural contentions. It stated that pursuant to the Court Orders of February 20 and April 13, 1973, it set forth additional documentation to prove that its dismissal of the Claimant was not arbitrary or unreasonable, and that the record shmrs its justification for dismissing the Claimant as an unsafe employee.
 By way of preliminary statement, the Carrier stated that the very number of accidents in which the Claimant was involved was significant in
                                          PLG 5q9 AWGLS'd


                . -w-


and of itself. The Claimant had 23 personal injuries in 1? years of employment. The nearest employee in terms of injuries had 12, which sere spread out over 22 years of employment. The Carrier noted that there were 12 men hired prior to May 10, 1951 (Claimant's hiring date), with an aggregate of 396 years of service, who collectively suffered 63 accidents. These 12 employees had an average of 5-15 per man over a 33-year span, or .16 of an accident per man per year, or one accident every six years.
 The Carrier further noted that 26 men were hired subsequent to May 10, 1951. Collectively they sustained ?8 accidents. The average length of service for these employees was 12.2 years. Using the same averaging data, the average was approximately one accident every two years.

            The Claimant averaged 1.3 accident each year.

Turning to the specifics of the Claimant's accident record as disclosed ty its files, the Carrier stated that two or three of the Claimant's injuries could be properly classified as true "accidents" such as foreign objects flying into one's eyes, but the balance of the 23 accidents demonstrate carelessness, lack of concentration, and sloppy work. The Carrier summarizes the Claimant's accident record in the following manners

              (a) July 2, 1953 - sprained left foot when he stepped on ladder lying on ground during daylight hours.


              (b) June 22, 1955 - strained right shoulder while operating a cutting lever, which Wiisniewski alleged was defective.


              (c) November 10, 1955 - contused left hip on cabin car railing while attempting to get off after observing two cars which had been cut off coming toward him.


              (d) February 19, 195? - strained right shoulder while operating cutting levers, which W'isniewski alleged were defective.

          (e) July 1, 1959 - while alighting from moving loco:aotive,

              he stepped on stone and bruised bottom of right foot,

                                          PL6 5yo A Ida rd i


                      _s_


              (f) March 7, 1960 - sprained neck muscles and contused right shoulder when slipped and fell on ice and snow during daylight hours.


              (g) June 8, 1960 - sprained left forearm and elbow while operating cutting lever, which Wisniewski alleged was defective.


              (h) February 3, 1961 - contused right knee when struck it against guard rail on locomotive.


              (i) March 3, 1961 - trushburn on head when bumped head against plate above knuckle while attempting to couple air hose.


              (j) January 21, 1962 - twisted hip when he slipped on snow while stepping over Main track #2.


              (k) ?".arch 20, 1962 -injured back while attempting to adjust knuckles on two cars.


              (1) June 20, 1963 - injured left forearm while attempting to release hand brake.


              (m) January 10, 1964 - injured left knee while walking on slag which broke loose causing fall on left knee.


              (n) November 16, 1964 - injured right knee while riding a car .when he stepped down, missed stirrup and bG^aped knee on side of car.


              (o) Deonater 17, 1964 - sprained left shoulder and right knee while in cabin car during a shifting operation.


              (p) March 1, 1966 - contused upper left ax= when sideswiped by moving car while standing too close to adjacent track.


              (q) July 18, 1966 - aggravated neck and shoulder when he stumbled and fell while coupling and opening angle cocks.


              (r) November 19, 1966 - turned AvhthAnkle when he stepped on a tin can during night hours.


              (s) June 13, 1967 - strained right shoulder while attempting to throw a spiked switch.


              (t) Ausust 20, 1968 - strained right shoulder while operating cutting lov=r, which Uisniewsli alleges woo cefcctive.

In addition the Carrier reproduced nd attached to its Resubmission copies of the pertinent papers in each accident file of the Claimant.
                                            p~. r~ 5 ~a

                                            l~ u~ a. t~ d


                        -6-


These records represented infoxination developed at the time of each event and were records kept in the regular course of the Carrier's business.
 The Carrier also stressed the Claimant's service record showing the discipline administered to hiv between the years 1951 and 1968. He received five suspensions ranging from five days to 60 days, one reprimand, and a dismissal for the offense here in issue. Three of the last suspensions and reprimands were for violations of safety rules.
 Tha Carrier contends that the records it has sulnitted to this Board, pursuant to the Federal Court's Orders, rake it clear that this Board's original Award was proper and just and should not be disturbed.

                  Oraanioation's Position

The Organization reiterated its procedural arguient that since the Claimant -was not tried within 15 days of any possible offense, his prior accident was not admissible for the purpose of detezminitb the extent of discipline to be in posed, and therefore it is improper to introduce additional evidence at the Board level.
 The Organization further stated the Carrier's data and inforination introduced at this subsequent Board proceeding consists panarily of statements and formal accident investigations. It naturally contains no material favorable to the Clatmant. The accidents new relied upon by the
 'Carrier to show Claimant's guilt occurred 21 to 27 years ago. It is unreasonable to expect the Claimaazt to have retained records relative to these accidents or to be able to produce witnesses to disprove the self-serving documents produced by the Carrier.

            The Orpanization emphasizes that an award sustaining the

                                            PL 5U~


                ..


Carrier's position would make a mockery out of the contractual requirement that the trial be held within 15 days of the offense.

 Findings: The Board has been charged with an important but limited
 function by the remand of this case to it by the Federal District Court.
 The Court took issue with the Award because the Board did not "have before
 it specific information relating to any of the mishaps in which the petitioner
 was involved ....The Court said that the Board, therefore, had no evidence or
 basis from which it could conclude petitioner was negligent or personally
 responsilie for accidents."
 the Board was not directed by the Court to consider any evidence other than the Carrier's records pertaining to the work-connected accidents or injuries suffered by the Claimant. It is, therefore, inappropriate for the Board nor to entertain the procedural objections being interposed by the Organization for the first time.
 T'he Carrier has now sulnitted its records pertaining to the accidents in which the Claimant was involved. These records contain the accident reports (Form CT-93) signed by the Claimant and the medical reports furnished. by a physician where one was seen. Some of these reports contain statements by fellow employees regarding the facts of the accident.
 The first Report is dated July 2, 1953. and the last report covers the August 20, 1968, accident. There are 20 accidents involving the Claimant.
 ' An e=ination of these 20 accident reports shows that on four occasions he injured himself while trying to opera+o defective cutting levers. The redo=ds indicate that the Claimant did not comply with Safety
                                            PL (3 5qq


Rule 1005 by failing to use proper methods to lift the pins when the cutting

 lever was not operating properly. The records show that for the June 22,
 1955, accident he was absent 19 days; for the February 19, 1957, accident
 he lost three days; for the June 8, 1960. accident, four days, and no days for the August 20, 1968, accident.
 Another example of the Claimant's lack of observance of safety
 rules may be gleaned by the accident report of (arch 1, 1966, wherein he re
 ported that he spas sidestriped :y a westbound car as he was s·~ritchina cars to
 the easttov:.d track. Safety Rule 1280 requires trainmen to keep a .safe dis
 tance frcz rassirg cars and an experienced trainman such as the Claimant
 ,should have kno:-m the necessity for standing clear of an adjacent track that had movinv equirnient on it. He lost two days on account of this accident.
 Cn June 13, 1967, the Claimant lost 124 days from work when he pulled his shoulder attempting to throw a spiked switch. his own testimony showed he made many attempts to throw this switch by the exercise of force which resulted in his pulled muscle. He breached Safety Rule 1094, and if he had only looked to see what was wrong with the s,ritch when it did not respond to his exercise of force.' he would have seen that the switch was spiked. The Carrisr imposed a 30-day suspended sentence on the Claimant, which sanction the Grganizatien did not appeal to a higher body when the initial appeal was denied.
 The accident records r: further show that the Claimant was injured irhile alighting from a locomotive not wearing proper footgear (July 1, 1959) and thus trussed the ball of his right foot, causing him to lose five days from work. These records also reveal that he injured his tack while
 6 5Ng
 A Ward f
adjusting knuckles on cars (;:arch 20, 1963), by force and "muscle," instead of using care in adjusting the drawbar. This accident caused the Claimant to lose 126 days from work. He also injured his left forearm on June 20, 1963, while attempting to release a handbrake that was hard to release. Safety Rule 1074 mandates the employee releasing the brake to use "care to keep clear of the wheel." Other accidents suffered by the Claimant suggest that he did not use proper care in avoiding slippery conditions on the ground
 during daylight (July 2, 1953; March 7, 1960; January 10, 1964 and November

 19, 1966).
 Upon a detailed review of the records maintained by the Carrier with regard to the accidents and injuries suffered by the Claimant, covering his period of employment, namely from 1951 to 1968, the Board finds that there is adequate competent probative evidence in these records to support the Carrier's decision that the Claimant was not a safe employee and whose services it could terminate without being guilty of arbitrary or capricious conduct toward the Claimant.
 Having thus evaluated all the relevant data regarding the Claimant's accident record, pursuant to the Court's Orders, the Board hereby reaffirms the Award it originally rendered on September 22, 1970, and upholds the Carrier's dismissal of the Claimant.

 AWARD:

 Claim denied and original award reaffirmed.

 JACOB': ;ID'ZZNBSRG, Chairman and ' eutral Member of Board

 F. iJ. ftansfie d, Cari:ar Menter

 ,//'G. il.~egge,~ loy wember

 (Dissenting opinion attached)
                                              pL6 .~ ~a A LJcL ~d


PUBLIC LAW BOARD N0. 542

 Parties: United Transportation Union and Stanley G. Wisniewski
      · and

        Pittsburgh, Chartiers and Youghiogheny Railroad Company


                    DISSENTING OPINION

Since my first experience in arbitration proceedings as a labor representative in the year of 1946, I have never written a dissenting opinion. This situation demands a dissenting opinion.
 The District Court of the United States for the Western District of Pennsylvania in remanding this discipline case for rehearing before this Board has clearly exceeded its jurisdiction. The district court had before it a petition for review of an award sustaining discipline of dismissal imposed on the employee on the basis of a verdict in a trial conducted by the employer. The district court had a limited right of review to determine whether this Board exceeded its jurisdiction and found that it had done so. It therefore became the duty of the district court to sustain the appeal and order the employee reinstated. Instead of doing that, the district court required the employee to stand trial again on appeal and has made a shambles of the firmly established procedure in discipline cases which for reasons of fundamental fairness forbids the consideration on review of any matter not introduced at the trial itself.
 The procedure adopted in this case also violates the carrier's collective bargaining agreement rules which required that charges be brought against the employee within 15 days of the offense. But here the employee was specifically acquitted of fault in connection with the August 20, 1968 episode which was the basis for the charges against him and he has in fact been dismissed for "offenses" some of which occurred more than 24 years ago. I dissent.

                                . W.

                                    ,0/

                                    Legge, Emp~qyee Member