Form. 1 NATIONi!L MUROAD ADiliS_'ME.N'T BOARD Award No. lr04/
SECOAM Dl~iSIC~j T Docket :\J. U7:J3
2-SLSW-.CM-x /5
The Second Division consisted of the regular teem"'iers and in
addition Referee Dana E. Lischen when award was rendered.
System Federation No. 45, Railway Employes'
( Dspartment A. F. of L. -° C. I. 0,
Parties to Disoute:

( St. Louis Southwestern Railway Company

Dispute: CIP -iMr of EmDLoyes

1. That the 5t. Louis Southwestern Railway Lines unjustly dealt with Tnmiorary Carman B. A. Cardner, Pirle ?'Tuff, Arkansas when his personal record: was assecscd faith twenty-five (?.5) demerits in violation of the terms of the controlling agreement.

2. That the S;:. ''jou_;.s Southwestcrr; Railway Lines be ordered to

remove the twenty-five (25) demerits and any and all my-iterial

reL.iting to this i nc :dent from rim. Gardner's personal record

and that a suitable officer of the Carrier par sonally apolcoize

to her. Cardner for the affront to his dignity.

~^ynd i.r: s

The Second Division of the Adjustment Board, upon, the whole record and all the avi dence, finds the t:

'the carrier or carriers and the employe or employes involved in this

dispute are rcspective?y carrier and employe within the meaning of the Railway Labor Act ac approved June 21 , 1934.

`lh i.s Division of the Adjvstrtent Board has jurisdiction over the

dispute involved herein.

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

Claimant is erzploy.-':d as; a Carman at Carrier's Gravity Yard at nine Bluff, Arkansas on the 3:00 to '1:00 p.m. sh-ft. Following a hearing and investigation. Claimant on June 22, 1973 was assessed twenty-five (25) de;nerits for allegedly failing to complete his assigrnent as Carrn n and givi; false reason for laying off on May 19, 1973. Petitioner, on behalf of Claimant fi?_ed the instant grievance on August 2, 1973 seeking excision of the demerits as well as a personal apology to Claimant for the "affront to his dignity". Tailing resolution on the property the claim comes to our Board for disposition.

'ir:.L incidint out of which the claim arose is best described by tsatxH.4~ny of the various participants, as transcribed in the record of the hearing con.-ducted JuE;o 'l, 1.:73.
Form 1 Award No. 6969
Tla ge 2 Docket No. 6703
2-SLSW-CM-'75
The Claimant's immediate supervisor testified as follows:
"On the giver. date Mr. Gardner told me about.3:i5 that he
needed to go home a t 7:00. I told Mr. Gardner that I was
working two men short already and no one on the Rip Track
to take his place. If he had to lay off to see Mr. Kelley.
At about 7:15 Mr. Gardner called me on the radio, stating
that he needed to go in at 8:00. I told him that I was
still working two man short and Rip Track was still short
of men and asked him if he had talked to Mr. Kelley about
laying off. He stated that he hadn't but would if he was
here. He then told me that he was sick and going home at
8:00. I told Mr. Gardner that if he was sick, he had no
business continuing work until 8:00. He punched out at
7:46."

Claimant testified as follows:

"First of all I told the Foreman, C. T. Rodgers that I tray have to take off at 7:00 P.M. and he told me that I would have to go talke to Mr. Kelley. So I decided that I wouldn't bother Mr. Kelley and stay on at work. But I was feeling sick. from the time I came to work and I was beginning to feel even worse, so I told C. T. Rodgers again that I needed to take off because I wasn't feeling good. Ile asked me had I talked to Mr. Kelley and I told him that Mr. Kelley wasn't anywhere around. ,So he told me that if I was sick to go on home. I punched out about 7:46 and on my way home a friend stopped me.and I talked to him and I proceeded to go on home. When I got home there wasn't anyone there. So I thought maybe icy wife would be down at a neighbor's house. So I decided to go down there. And she wasn't there. One of my neighbors informed rye that she was over at her brother's house and that my daughter was sick. I proceeded to go over to my borhter-inlaws house and my wife and children were there. My little girl was sick, so we called Doctor Townsend concerning her sickness which was a type of Bronchial Asthma. Ile instructed us to use a vaporizer and see if that would get her any better, and if not to bring her on to the hospital. We knew what to do after he instructed to use the vaporizer because she had been in the hospital several times before. At that time, I still wasn't feeling very good, but my daughter sick and she meant a little more to me than myself. After about 30 minutes, she did get better. I instructed my wife to call Dr. F'lower's office-and see if he was in because we knew he would be open late at night. She called him and he was in. He instructed her for me to come on up and I went to Dr. Flower's office.

_ He treated me there. After leaving Dr. Flower's office I went

back to my brother-in-law's house to get my wife and daughter.

I stayed at my brother-in-laws house for about another hours.

1 proceeded to go home."

Form 1 Award No. 6969
Fage 3 Docket No. 6703
2-SLSW-CM-1 75

The record indicates that when Claimant left the Yard at about 7:45 P.M.p Carrier officials contacted a Special Agent of Carrier and arranged to have Claimant surveilled. The Special Agent testified as. follows:

"On the night in question I was in the Yard checking as part of my duty and received a call from Mr. Heird asking me to come to the Spot Rip which I did. He informed that Car Inspector Gardner had informed him that he was going to leave work at about 7:00 or 7:30. The foreman.at that time told Mr. Gardner that he had no one to replace him with. At about 8:00 Mr. Gardner went home sick. Mr. Heird asked me to accompany him to Mr. Gardner's residence. We were at Mr. Gardner's residence! at approximately 9:50 PM. At that time, there was no one home at the Gardner residence. In order to make sure that there was no one home, we knocked on the door and rang the doorbell for 5 to 10 minutes. We then went back to the Yard and I continued my regular duties."

In addition to the foregoing testing, the hearing record contains a certificate signed by Claimant's physician, Dr. Flower, stating that Claimant underwent treatment in Dr. Flower's office on Clay 19, 1973 at 9:00 p.m.

We are met a t the outset; by Carrier's asserticn -gnat the entire claim ould be dismissed because the remedy sought by Claimant is not authorized iiy the Agreement, Moreover, Carrier contends that Claimant was afforded a fair and impartial investigation, that substantial evidence supports the finding of culpability and that the penalty assessed is not arbitrary, unreasonable or capricious.

Upon review of the record and the parties positions, we are not persuaded that an apology is warranted or properly awarded under the Agreement and facts herein. Nor do we find any substance in Petitioners contentions that the hearing was other than fair and impartial and proceedings correct. But, however, Petitioner's position is persuasive regarding the inadequancy of the evidence upon which the finding of guilt was based.

It is well established that in disciplining proceedings, Carrier has the burden of establishing by substantial evidence on the record that the accused is calpmble of the charges made against him. Circumstantial evidence of the type adduced at the hearing in this case is not inadequate per se to support a finding of guilt. But the inferences upon inferences drawn in this case by Carrier are more conjectural than circumstantial, especially when viewed in lgght of the unrefuted doctor's certificate introduced by Claimant. Mere suspicious circumstances and suppositions are not: substantial evidence of wrongdoing and in our judgement Carrier in this case failed to carry its burden of proof.
Forts 1 Award No. 6969
"age 4 Docket No. 6703
2-SLSW-CM-175
The principle underlying this decision is well set out in our Award
No. 3869 to wit:

"The law is well settled that circumstantial evidence is not only sufficient but tray also be more certain, satisfying and persuasive than direct evidence. See Michalic v. Cleveland Tankers, Inc. 364 U. S. 325, 330; 81 S. Ct. 6, 11 (1960).

However it is also a firmly established rule of law that, in discipline case circumstantial evidence does not relieve the employer from the burden convincingly to prove that the employe disciplined is guilty of the wrongdoing with which he is charged. Mere suspicious circumstances are insufficient to take the place of such proof. See Second Division Awards 1178, 1197, 1969 and 2583."

Accordingly, we shall sustain the claim to the extent of directing Carrier to remove the twenty-five (25) demerits and all related material from Claimant's personnel record.

A WA R D

Claim sustained to the extent indicated in the Findings.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

By

o~emarie Brasch - Administrative Assistant

Dated a t Chicago, Illinois, this 12th day of December, 1975.