The Organization argues that Claimant was denied a fair and impartial Hearing as required by the rules, when the Carrier failed to confront him about his actions on October 5 and relied upon a written statement allegedly made by the trainee working with him without presenting that employee for questioning by the Organization at the Hearing. The organization contends that the Carrier failed to sustain its burden of proof by relying upon assumptions and hearsay evidence to support the charge.
The Carrier makes a procedural argument about the failure to hold a conference in this case, and contends that the Board cannot resolve conflicts in testimony, and should not disturb the Hearing Officer's findings since they are neither arbitrary nor unreasonable.
The Board finds that there is no merit to the Carrier's procedural objection to proceeding with the merits of the case. A careful review of the Investigation reveals that supervisor Byers' conclusion that Claimant was smoking in the control room during his October 5, 1992 shift was based uoon his assertion that he smelled smoke upon entering the control room at 7:00 a.m., the trainee's written statement that both he and Claimant had been smoking there, and Claimant's alleged admission to Byers. The Board concludes that the Hearing Officer could not have properly given any weight to the written statement of the trainee, since he was not called to give testimony at the Investigation and the Organization was prevented from questioning him, and the organization submitted another statement from the trainee explaining the circumstances surrounding his giving the first statement and contradicting any contention that he or the Claimant were smoking in the control room on October 5, 1992.
Byers admitted that he did not see anyone smoking in the control room on October 5, 1992, nor did he question Claimant as to whether he had been smoking there on that date. The Investigation makes clear that Byers knew that Claimant was a smoker, and that Claimant admitted to Byers that he had been smoking during his shift on October 5, 1992, when questioned the following day. Form 1 Award No. 13075
The only discrepancy in the testimony is Byers, contention that Claimant admitted smoking in the control room, and Claimant's testimony that he had been smoking in the designated smoking lounge on the 12th floor and that Byers never asked him where he had been smoking. There is no dispute that Claimant refused to sign a statement for Byers on October 6, :992, indicating that he had been smoking in the control room the prior day. Neither is it disputed that Claimant was aware of Carrier's No Smoking policy at the time, which prohibits smoking in the control room, among other places, and designates the 12th floor of the building as a smoking area.
While long established precedent reveals that this Board cannot set itself up as Crier of fact when confronted with conflicting testimonv and -nay not resolve credibility disputes,
Second Division Awards -542, 8280, 8566), it also recognizes that it is the responsibility of the Carrier to adduce substantial evidence _n support of any discipline imposed, (Third Division Awards 25411, 11626). Under the circumstances of this case, we are unable to conclude that Byers' contention that Claimant admitted smoking in the control room constituted substantial evidence of proof of the violation. This is especially true in light of Claimant's knowledge of the Rule, his prior discussions and warnings on its application, Byer's failure to question Claimant about his smoking on October 5, 1992, Claimant's explanation that Byers knew he was a smoker and that he admitted smoking during his shift on October 5, 1992, but was never asked at what location he did so, and Claimant's refusal to sign a written statement indicating he had smoked in the control room when requested to do so on October 6, 1992. The Board is not convinced that the Carrier has met its burden of proof in this case, and, accordingiy, the claim will be sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties. Form 1 Award No. 13075