NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-19996
Irwin M. Lieberman, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Albany Port District Commission
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it
(a) disciplined Mr. Howard Brown to the extent of
disqualifying him as an Assistant Foreman;
(b) suspended Mr. Howard Brown from employment for
a forty-five (45) day period commencing October
23, 1971, ending December 6, 1971;
(c) suspended Mr. Joseph Rafferty from employment
for a thirty (30) day period commencing October
23, 1971, ending November 21, 1971.
(2) As a consequence of the aforesaid violations
(a) Mr. Howard Brown be immediately returned to
service as an Assistant Foreman and that he be
allowed pay for all time that he has been improperly held out of service as an Assistant
Foreman subsequent to October 23, 1971;
(b) Mr. Joseph Rafferty be allowed pay as a Trackman
for all time that he has been improperly held out
of service from October 23, 1971 to December 6, 1971.
OPINION OF BOARD: The two Claimants were charged with unauthorized absence
from employment on October 22, 1971. Following a hearing held
on November 3, 1971 Claimant Brown was suspended for forty five days and removed
from his position as Assistant Foreman and Claimant Rafferty was suspended for a
thirty day period.
It is well settled that in this industry the burden of proof in disciplinary matters is squarely upo
judgment for that of the Carrier with respect to credibility or weight of evidence;
but by the same token, the record of the investigation must reveal substantial
evidence to support Carrier's findings. The transcript in this case does not
support Carrier's conclusions; it contains no direct testimony whatsoever but
merely a summary of discussions by those present at the hearing; it contains no
positive evidence whatever in support of Carrier's findings of guilt.
Award Number 19962 Page 2
Docket Number MW-19996
With respect to the discipline imposed we shall not deal with the
problem of the removal of Claimant Brown from his position as Assistant Foreman since by his own adm
claimants subsequently left the Carrier's service. In sustaining the claim we
shall limit the remedy, then, to making both Claimants whole and removing the
discipline from their records.
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 Employes within the meaning of the Railway Labor Act,
as approved June 21, 1934·
That Luis Division of tire Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated.
A W A R D
Claim sustained to the extent of making both Claimants whole for the
periods of suspension and removing the discipline from their records.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:~·
6W/4,4
Executive Secretary
Dated at Chicago, Illinois, this^, 28th day of September 1973.