(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employer PARTIES TO DISPUTE: (Chicago, Milwaukee, St. Paul and Pacific Railroad Company

1) Carrier violated the Clerks' Rules Agreement when the Superintendent accepted a request for f as a Carrier witness at these investigations, thereby denying these employee a fair and impartial hearing.

 2) Carrier's action in assessing discipline of fifteen (15) days' deferred suspension with one year probationary period against employer R. R. Johnson, M. R. Gilman and R. J. Maietta was vindictive, arbitrary and capricious.

 3) Carrier shall now be required to clear the records of employee R. R. Johnson, M, R. Gilman and R. J. Maietta of the charges made and the discipline assessed.

 OPINION OF BOARD: Claimants were part of Carrier's third trick clerical force
 at the St. Paul, Minnesota Yards whose responsibilities re
 lated to the movement of freight through that Yard. In all there were five
 clerks, a janitor and a Chief Yard Clerk; an Ice House Laborer and a Perishable
 Freight Inspector. Between 1:00 A.M. and 1:30 A.M. on the morning of September
 15, 1970, all the clerks and the janitor became ill and asked permission from
 the Chief Yard Clerk to go home ill, and were granted permission. At about the
 same time the Ice House Laborer also became ill and asked permission from his
 superior, the Perishable Freight Inspector, to leave and go home, which permis
 sion was granted. All of the above employees were represented by the Organiza
 tion herein, in two different Districts. The Carrier, assisted by the two super
 visors, some executives and two day employees who agreed to come in and help,
 managed with some difficulty to get through the night till the day crew reported
 for work.

 It should be noted that midnight September 14, 1970 had been the deadline for a nationwide strik At 11:50 PM on September 14, 1970 a Federal District Judge in Washington, D. C. issued a restraining order forbidding the four Unions, including their officers, agents and members, from engaging in any selective strikes, or work stoppages or picketing until September 23, 1970.


        On September 25th Carrier preferred charges against the seven men on three grounds: for participating in a premeditated and concerted work stoppage; for failing to protect their assignment on the night in question; and for fraudulently alleging sick employees, including Claimants herein, were found guilty and were each assessed fifteen days deferred suspensions. This decision, with respect to the three Claimants only, was appealed by letter of October 15, 1970 to Superintendent Plattenberger, requesting an appeal hearing under the provisions of Rule 22. .After an exchange of correspondence, appeal hearings were held on November 3, 1970 before Superintendent P conclusions and awarding of discipline.


        On November 25, 1970, the Organization wrote to the Vice-President Labor Relations of the Carrier requesting an appeal hearing on behalf of the three Claimants under the provisions of Rule 22 (d). The appeal hearings were held on December 18 and on December 23rd the prior decisions were sustained by the VicePresident. On Decembe Organization, the position was first enunciated that Claimants did not receive fair hearings from the Superintendent, since he had acted as Carrier witness at the original investigations.


        Part 1 of the Claim in this matter deals with the allegation that Claimants were denied a fair a upholding the previously assessed discipline when he had acted as a Carrier witness at the earlier hearings. Rule 22 (c) in pertinent portion states:


              "An employee dissatisfied with the decision may have a fair and impartial hearing before the next higher officer, at which such witnesses as are necessary and duly accredited representatives,

              as specified in Rule 52, may present the case "


        With respect to this portion of the Claim: 1) Petitioner has presented no evidence of abuse of d to the Superintendent) and also no objection at tae time of the hearing; 3) there is nothing in the Rules prohibiting an officer -aho acted as a witness from serving as an appeals officer. There appears to be no evidence or support in the Rules for the contention that the functioning of the Superintendent as the presiding officer, after appearing as a witness in the earlier investigation, in any way impaired the rights of the Claimants (See Awards 8986, 13179, 13672, 16074 and 3893), 4'e shell therefore deny Part 1 of the Claim.


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                  Award Number 19708 Page 3

                  Docket Number CL-19604


In its submission, Petitioner contends that the suspending of the discipline which had been assessed was in violation of Rule 22. We find no support in the Organization's arguments for this position; further, we do not find, after careful study, that there is any language in Rule 22 (or other Rules) which prohibits Carrier from assessing deferred discipline.

 With respect to Parts 2 and 3 of the Claim, we have long adhered to the principle that this Board will not substitute its judgment for that of the Carrier in discipline cases where the record discloses substantial evidence in support of the charge. This was well stated in Award 3149 as follows: "We are committed to the rule that it is not a proper function of this Board to weigh the evidence and if the evidence is such, that if believed, it supports the findings of the Carrier, it will not be disturbed."

 The record of the investigations reveals the following essential evidence: 1) All the events on the property took place in the shadow of an impending national walk-out, which was called off at the 11th hour, just an hour or so before the actions of Claimants herein. 2) All of the employees (seven in number) below supervisory rank, members of the Organization, left work within a 15 to 30 minute period on the night of September 14th, 3) All the employees claimed to be ill at the same time, claiming inability to work. 4) The testimony of the security patrolman at the investigations with respect to the conversation he overheard, was neither refuted nor denied. 5) None of the Claimants was permitted to testify at the investigations with respect to prior discussions or agreements concerning stoppages. It would strain the credulity of reasonable men, under all the circumstances, to believe that the sudden illness of all the employees was coincidental. It is our conclusion that the record of the three investigations contains substantial evidence to support the decision reached by Carrier. Further, the discipline meted out by Carries was not unreasonable. We shall deny the Claim.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


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

 i
                  Award Number 19708 Page 4

                  Docket Number CL-19604


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

        That the Agreement was not violated.


                      A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST: 4011641
            i~/ _

        Executive Secretary


Dated at Chicago, Illinois, this 13th day of April 1973.