Org. File 'il-61-760 DECISION No. 471L;
 Co. File 011-181 (H) CASE No. 2-UTU(C) (Conductors)
 Supplamental List No. 42



PARTIES TO DISPUTE: United Transportation Union (Conductors-Trainmen)
 Southern Pacific. Transportation Company
 (Pacific Lines)

 STATEMENT OF CLAIM: Carrier violated the cu-rent Agreement when it preferred a charge of accident-proneness, as detailed in its notice of February 10, 1969, again3t Conductor F. A. Holman, Oregon Division.

 STATEMENT OF FACTS: The factual situation giving rise to the claim
 is sufficiently detailed in the body of the Award to obviate the
 necessity for duplication here. The Board has appraised the entire
 record and reaches the following result: .

 DECISION: Claimant was dis.:ha=gsd for "aceidPn:-p:cn9nes3" based
 upon*a statistical .3howing that he had teen invnlvad in 16 accidents
 in the cow-oe of his employment career with th?a carne= between
 March 19$1 and December 1968.
The charge of "accident proneness" as grounds for discha=ga,whil.3not unheard cf by any mean°, a ncva:.`.helc33 relatively unusual and raises interesting questions whir.; deserve careful consideration.

 It must :De emphasiz::a kt the outset. that the ca:rier in this case has not. seen fit to :harFe. claimant.. wiizi nag_igenco or
 ', reap,:a3it,ility for any of the 16 ac.cidenta ii. 4t:_.:h tie wad involved.
 ,The carrier rests its cane solely on the propos_tiar that claimant's accident rate is "significantly higher than the average for those similarly situated."

 Ordinarily an employe may be discharged under certain circumstances for negligent involvement in a serious accident or for negligent involvement in two or more less aeriou3 accidents. In such cases the employe is entitled to a :caring in which the employer must carry the burden of proving tt:at the accident occurred under ciroLmitances such that the employe could have prevented or avoided the accident if he had performed and reacted in the manner expected of an average, reasonable and p rodent individual. In the present case, the employer seeks to avoid that burden of proof and to establish a different ground for discharge--discharge without fault for involvement in unexplained acciden:·!· mare numero" than average.

                                Supplemv-n Lai Liat. Nc. 42


                          -2- __


After a careful study of the sub.je,:;. o= i:oncept of "accident-proneness" this arbitrate- cannn° co.cr= With the idea, loosely articulated in some awards cited by the carrier, ro the effect that raw statistics are a satisfacto_-y basis for termination of an individual's employment rights in the absence cf any specific proof of fault or negligence.

          Tha fact of the mater s that a^r-:_4ee:,p=?.-.one. :s i3

a rather complex problem. The Lawye:'~5 Ms:i:a- Cyc:_raii~ Pavised
 Volume 3 has an entire chapter of 54 pages devoted :n :'_.e subject
 and points out that there are physiological, emotional and psychiatric
 bases for the condition which may be dete·:fied and t,,^~a:ed by competent
 medical personnel.

 The complicated nature oC t:ie p:eblem I= ue!l i_'iustrated in a lengthy arbitration decision by an e:cpe,ien:ed a.^.3 respected arbitrator in a reported case designated a3 ~fcrt. ~.^i~o Aircraft, Inc., 211. LA 732. In that case, the discharge was properly hanalea by the employer as a medical discharge, ana the dec_3iaa u ea based on the informeu opinion df a physician experienced in industrial medicine. There was medical evider.ce for bc.Lh parties and the arbitrator's opinion. refers to the fact that the di:)pLt1: involved "a highly specialized aspect of industriapzy.:h~Iogy."

 The claim as asserted in the present r:fi,e a-qks for a ruling that the carrier violated the Aoreemant ay preferring `a charge of accident proneness. It must be concluded tnat when. the carrier elects to discharge for "accident proneness". as distinguished from negligent responsibility for an accident or accidents, it must handle the matter as a medical discharge based upon competent medical evidence and allow the employe the con:=amlal rig-'its provided to contest any medipal discharge.

          The claim is disposed of as indicated in :he findings above.


                    Pau?~S: Ranlon, hazrma

                    _ Neut: al Member


                              Ge·,. Fe.;:11 s, E5~Fioye Member


San Francisco, Califo,-nia ~~ :. ~~ .:.::c:. Cr.?.~ier Memo
 Ontober 20, 1971