The evidence used against Ferguson consisted of a letter from the passenger, of which Ferguson had been informed prior to the filing of the charge against him.

Under numerous awards of this Board the Carrier's letter gave Ferguson sufficient notice of the nature of the charge against him and, the letter of the passenger was competent evidence that could be used at the hearing. See Awards 2770, 2772, 2793, 2945, 2978, 3109, 3125, 3213 and 3498.

The record discloses that the incident occurred when the passenger wanted to be seated at a chair which was vacant at one of the tables. Ferguson testified that the passenger wanted this chair out of order; that he very politely told her why she couldn't have it; and that thereafter he gave her a seat just as soon as he could.

The passenger's version of the incident, as related in her letter, is as follows:

"I went in to breakfast after eight o'clock and found a bufet car. I was traveling alone and did not notice at first there were people waiting in the rear.

A colored steward-waiter suggested I wait a moment which I did.

Noticing a single seat near the entrance I suggested I take it. At that he loudly and in quite the most objectionable manner I have ever been subjected to, told me what I could and could not do. He was rude beyond words and I naturally asked him how he dared to speak to me in such a manner.

The attention of the entire car was centered upon us which pleased him greatly. Said he: 'You do not like the truth so I'll tell it to you-you have no right to be served before these people, etc., etc.'

In my years of travel and my frequent use of this train on your road, I have never encountered such shocking treatment and seriously object.

Later when he had a single seat, I asked my waiter if the car was put on at Albany and what was the man's name? He returned to the table and loudly said, 'Madam, you do not need my name, only the car.' I replied nothing.

I asked the Pullman conductor to whom I should address my complaint and he bad already heard of the episode from another passenger."

Ferguson admits the passenger asked for his name, that he did not give it to her; that he gave her the car and train number instead, advising her that they were sufficient. He also admits that the passenger was dissatisfied and upset but testified that it was due to her not getting the seat when she wanted it. He further testified that he was courteous and treated her in a polite and proper manner at all times and that when she had finished breakfast he very courteously corrected her mistaken idea that she was being overcharged. He properly reported the incident when he completed his run.

While the evidence is in conflict, however, we cannot say that the Carrier's decision is not sufficiently supported thereby. Nor do we find the punishment imposed arbitrary or unreasonable. We have come to the conclusion that the action of the Carrier must be sustained.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing thereon;

That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the Carrier has not violated the agreement.

AWARD