Irwin M. Lieberman, Referee


              (Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (Missouri Pacific Railroad Company


                            STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7638) that:


              1. Carrier violated Rule 18 of the Clerks' Agreement, when, on August 6, 1973, following investigation, ii: disciplined Clerk Robert E. Hollowell, after failing to sustain the charge as set forth in the caption of the anrestigation (Carrier's File 205-4785).


i
              2. Carrier's action in assessing Mr. Hollowell's personal record with thirty (30) days' deferred suspension was arbitrary, harsh and an abuse of discretion.


              3. Carrier shall now be required to expunge the discipline assessed and all reference thereto from Mr. Hollowell's personal record.


              OPINION OF BOARD: This is a discipline dispute involving Claimant's

              alleged falsification of the reasons he gave for not

              protecting his assignment on June 30, 1973.


              Petitioner raises serious questions concerning the conduct of the investigatory hearing in this case. The record reveals that the conduct of the hearing Officer was far from exemplary in that he did impede Claimant's representativ

I) raise with Carrier's witness and in other respects as well. Although we
              do not condone the conduct of the hearing Officer, on balance, we do not

              find that it was sufficiently prejudicial per se to upset the discipline

              in the case.


1
              The crux of this dispute is whether of not there was sufficient evidence adduced in the investigation to support Carrier's conclusion that claimant was guilty of falsification. The record indicates that Carrier's entire btisis for the charge and conclusion of guilt is that Superginteadc.at Lang caw Claimant eating dinner at a restaurant at about 7:00 P. M. and walk out of the restaurant - some seven hours after he had callcd in sick. Th_°. record contains Tusefuted testimony that Claimant was prone. to lctier bask problems and had injured his back on the morning in qua;tion while moving furniture, causing him to rest and take medication. Carrier believes this is not credible in view of the fact that he ::as =n a rsetaurant the same e-renlng: "...Claimant's story is not lueliovsble." We do mot agrea with Perrier's conclusion; there

                Award Number 20766 page 2

                Docket Number CL-20763


was literally no evidence presented to substantiate Carrier's "belief". It is well settled in this industry as well as in the entire labor management field that the burden upon the employer; there must be convincing evidence, not merely suspicion, to establish the guilt o
        "We are forced to conclude that the dismissal of claimant was not supported by substantive evidence. The dismissal was based on testimony totally uncorroborated. The decision stemmed from nothing more than surmise and speculation and cannot be allowed to stand."


Similarly in the instant case carrier has relied on surmise and suspicion rather than probative eviu=ace to support its conclusion of Claimant's guilt. Consequently Carrier has failed to satisfy its burden of proof and the Claim must be sustained.

        FINDINGS: The Third Division of the Adjustmaat Board, upon the whole record and all the evidence, !Lads and holds:


        That the parties waived oral hearing;


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

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

        That the Agreement was violated.


                  A W A R D


        Claim sustained.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division

ATTE°E: ~,,.~6'~ 1
        Ex~a~utive secretary


Dated at Chi=ago, Illinois, this 18th day of ,July 1975.