NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 20159

THIRD DIVISION Docket Number CL-20196

Irwin M. Lieberman, Referee

(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (Kansas City Terminal Railway Company

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7280) that:

(a) Carrier violated the Agreement when it suspended Claimant William L. Mays from service for a company rules, which were not proven, and that the decision to suspend was unwarranted, unjust, arbitrary and prejudiced.

(b) Carrier further violated the Agreement when it failed to grant a conference as requested under provisions of Rule 25 of the Agreement.

(c) Carrier shall now be required to clear the record of the charges against Claimant Mays and compensate him for the ten (10) working days lost.

OPINION OF BOARD: The dispute in this matter involves the disciplin
ing of an employe for alleged participation in an
altercation during work.

Carrier first raises objections to Part (b) of the Claim in that this issue was not handled with Carrier's highest officer and therefore must be dismissed. The record supports Carrier's contention in this regard and Part (b) gr 18445 and 19306).

It is well established that this Board cannot question a finding of guilt by Carrier if that finding is supported by substantial evidence. Carrier's position guilty in that he provoked the assault by his foreman. A study of the transcript of the investigation does not support the finding of guilt; there is no substantial evidence to warrant a conclusion that Claimant violated the rules cited by Carrier. In fact the entire incident may not be properly charac was apparently so minor. The evidence indicates that an inadvertent blow was struck by the foreman - apparently without provocation. Claimant should not have been disciplined.

Award Number 20159 Page 2

Docket Number CL-20196

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 the Railway Labor Act, as approved June 21, 1934;

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

That the Agreement was violated.

A W A R D

Part (a) and (c) of the Claim are sustained; Part (b) is dismissed.

NATIONAL RAILROAD AD.TTTRTMRNT ROARn

By Order of Third Division

ATTEST: All Executive-Secretary

· Dated at Chicago, Illinois, this 28th day of February 1974.