STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
This Board is fully cognizant of a long line of discipline cases which hold we may not pass upon a conflict of evidence, the credibility of witnesses, nor substitute our judgment for that of the Carrier in the assessment of discipline. In the instant case we find the Carrier failed to establish that Claimant was in fact asleep on April 4, 1963. The witness Canipe testified that the Claimant was apparently asleep. The testimony shows that Canipe did in fact lay hands upon the Claimant, and it is uncontroverted that two doctors found Claimant suffering from back sprain. It is not unreasonable that the symptoms of back sprain would not become apparent to the Claimant until evening on the day on which the sprain was inflicted, and it is not unreasonable that Claimant attributed the presence of back sprain to the incident which occurred in the forenoon of April 4, 1963 when Mr. Canipe laid hands on Claimant.
In the matter of the allegation that Claimant made a habit of sleeping on the job, we find no evidence to support this allegation.
In the circumstances we must conclude that the Carrier acted in an arbitrary manner, and we find the Claim must be sustained, the Claimant be returned to his former position with vacation, seniority and all other rights unimpaired, and that he be paid for all time lost, less any earnings he may have made elsewhere during the period commencing April 10, 1963 to the date of his restoration to service.
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 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