NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
OPINION OF BOARD: The record shows that on October 15, 1965, Tie and Surfacing Gang No. 3 was assigned to surfacing track on what is referred to as the Albany Main between Delamon and Duane. In order to bring this gang up to its authorized strength of 10 men, the Claimants herein, one assistant extra gang foreman and five trackmen from Kenwood, were instructed, on a daily basis, to report to the Extra Gang Foreman at Delanson to assist in the work.
On October 22, 1965, the Claimants were at the work site near Delanson when the Extra Gang Foreman arrived at the work location with the necessary track machinery, and had performed some work on the track, such as removing track spikes from certain ties. When the Extra Gang Foreman arrived, he apprised the men of the train movements scheduled for that location that day, and at that time some question was raised as to whether
the men would be able to return to Kenwood during their regular eight hours, and the manner in which they would be paid if required to travel after their assigned quitting time in order to return to their headquarters at Kenwood. There is some dispute in the record as to what was actually said by the Claimants and by the Foreman of Extra Gang No. 3, but the Claimants did return to their headquarters at Kenwood apparently on instructions of the Foreman of Extra Gang No. 3. They were then instructed by the Assistant Track Supervisor to return to the tie gang. They started back toward the work site near Delanson, but were stopped enroute by the Track Supervisor who advised them that they were out of service at approximately 12:45 P.M., October 22, 1965. On October 25, 1965, each of the Claimants was notified:
The Claimants were held out of service pending hearing, which was held on Friday, October 29, 1965. As a result of the hearing the Carrier found Claimants guilty of insubordination, and each of them was suspended from service for a period of seven calendar days, October 23 to October 29, 1965, inclusive. All of the Claimants returned to service November 1, 1965, with the exception of William Conway, who had returned to college on October 29, 1965. A transcript of the hearing conducted on October 29, 1965, has been made a part of the record.
The Petitioner contends that the charge placed against the Claimants was not sustained by the evidence adduced at the hearing held on October 29, 1965, and that, therefore, Claimants are entitled to the reparations set forth in Parts (2) and (4) of the claim.
While the Board is reluctant to interfere with the administration of discipline by a Carrier, we do adhere to the principle that it is incumbent upon the Carrier to substantiate by positive evidence the charge or charges upon which the discipline is based. The Board has carefully reviewed' the transcript of the hearing, and it is our conclusion that the Carrier has not proved that the Claimants were guilty of insubordination. We will, therefore, sustain the claim, except that Claimant William Conway will not be allowed any compensation for Friday, October 29, 1965, it being shown in the hearing that he left early that morning to return to college.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: