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      Parties to Dispute: ~ ( Carmen


                ( Southern Railway Company


Dispute: Claim of Employee:
        1. That under the current Agreement, Carman H. L. Cash, Irondale, Alabama, was improperly suspended from service mom January 24 to February 9, 1972.


        2. That acccrdingly, the Carrier be ordered to compensate Carman H. L. Cash for all time lost beginning January 24, 1972 through February 9, 1972·


Fps:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employs or employee involved in this dispute are respectively carrier and employs within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

 Parties to said dispute waived right of appearance at hearing thereon.

 Claimant was suspended from service from Jaatsry 24 to February 9, 19?2 for failure to "properly inspect" a tank car.

 The Organization contends that Carrier violated the terms of Rule 34 of the schedule agreement in that Claimant was suspended from service "without dust and sufficient cause" as is required by the rule.

    In its Submission the Organization states: .


        "The charge of ' failure to properly inspect MU 39666, tank car departing Norris Yard January 13, 192 Train No. 3B-183' was never proved. There were m witnesses who saw the tank . car before it departed Noriis Yard and no proof that it was defective at that time. It is dust as reasonable to

Form 1 Award No. 6741
 Page 2 Docket No. 6439
 2-SOU-CM-174
 "assume that the car became defective after it
 departed as it is to assume it was defective
 upon arrival. It is true that for a coupler-to
 pull out, the cotter key and retainer would have
 to come out first, however there is no proof in the
 investigation as to when sad where this happened.
 _ It is very possible that the cotter key sheared off
 dust prior to the coupler pulling out. It is very
 doubtful that the car would have run the distance
        from Irondale, Alabama to Wilton.. Alabama if the

        cotter key was missing at the time the car was

        inspected by the Claimant.


        None of the Carrier's witnesses present at the investigation saw UTLX 39666 until after it had been repaired at Wilton., Alabama by Carman LerGrove. Bath Carrier's witnesses, General Foreman Slater's and Ingle's testimony was based on information passed on to them from the train crew through Caiman LaGrove. There were no members of the train crew or Carman LaGrove present at the investigation which deprived Carman Cash or his representatives the opportunity to question them on the information they had furnished Carrier's witnesses."


Carrier, on the other hand, asserts that Claimant was afforded a fair sad impartial investigation is connection with the charges against him, stating:

        "The evidence brought out is the investigation conducted by the officer in charge, Master Mechanic J. T. Freeman., conclusively proved that Claimant was guilty, as charged, of failure to properly inspect tTf7X-39666 which departed Morris Yard in Train 3B-183 on January 13, 192. This was the second. charge against Claimant for negligent and improper inspection of cars in outbound trains resulting in cross keys coming out in train movement (page 12 of transcript).!/


Carrier strongly urges that its decision with respect to both the question of guilt and the amount of discipline imposed must not be disturbed where it is supported by substantial evidence. In support of its thesis, and the fact that this is a long standing policy of this Board, Carrier cites 48 prior awards to that effect. We have no quarrel with the thesis, and continue to support it.

 It should be noted that the first charge alluded to occurred in 1
June 1960. Carrier made no attempt to indicate what discipline, if
 any., was given.
 Form 1 Page 3
Award No. 6741

Docket No. 639

2-SOU-CM-174


This does not means however that the Board is precluded prom determining whether the record before us does in fact contain substantial probative evidence that supports Carrier's decision; indeed, this is our mandate.

 With respect to the instant dispute the Board finds that the metal of this record is so corroded by double hearsay, conflicting testimony by Carrier witnesses and.irfereaces upon inferences that there is virtually nothing of any probative or substantive value upon which to base a determination of guilt. Accordingly, the claim must be sustained.

 AWARD

 China sustained.

NATIONAL RAILROAD ADJUSTMENT BQA.R,D

By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 By.
    ~ l

    ' osemarie Breach = Aauinistrative Assistant


Date at Chicago, Illinois, this 18th day of July, 1974.
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