PARTIES TO DISPUTE:

STATEMENT OF CLAIM:


OPINION OF BOARD: By letter dated March 23, 1982, the Claimant, J. P. Catanzarite,
 was notified to attend a formal investigation with regard to
 the following charge:


With respect to the above charge a formal investigation was held, after postponement on April 8, 1982, and thereafter, Claimant was notified of a decision of guilt and an assessed penalty of ten (10) days deferred suspension for the above charge. In fact, there being a previous deferred suspension activated under the controlling Agreement with this finding of guilt, the Claimant received a ten (10) day actual suspension from his previous record.
During the progression of this claim on property in both Transcript and letters of appeal, the Organization raised a number of issues. After the charges were presented for the record, Claimant's representative protested 'that we have come here today without full knowledge of what rule or rules or special instructions were violated and could not prepare a proper defense due to the improper notice...". The record indicates that there exists some interpretive variance between the charges as stated in the Notice of "Investigation" and the eventuated proceeding. On balance, this Board holds that the variance was not material, did not significantly mislead the Organization and did not preclude a fully prepared defense, as evidenced from the proceedings (see Third Division Awards 11170 and 12255).
                    Locket Number TD-25288


Additionally, the organization contended on property other issues such as the availability of witnesses and the lack of a "fair and impartial hearing". With respect to other witnesses, this Hoard does not find any reasonable basis for that contention. A postponement had been offered and further they were not "pertinent witnesses" (see Third Division Awards 23857, 20984). With respect to the issue of "fair and impartial hearing", as raised in the May 18, 1982, letter, contending that the Hearing Officer did not preside fairly, the issue is more complex. That Officer admitted to having decided Claimant's guilt with the Division Superintendent before the proceedings. While this Hoard is certainly mindful of the seriousness of this issue, it does not find substantiation for this charge in the whole of the Transcript. The investigation followed procedurally correct standards of presentation, cross-examination and investigation providing a "fair and impartial hearing".
As to the facts in the instant case, as noted above, the Carrier charged the Claimant with failure to "protect the movement" of cars and both Carrier and Organization were at variance over the interpretation of that phrase. The differing interpretations of the charge come from the facts at bar. On March 22, 1982, Claimant was assigned as an extra Train Dispatcher and as such, was responsible for Train WNRE-20 to pick up twenty-six (26) cars at Attleboro, MA and see that they were moved to Providence, RI. During the investigation it became apparent that Carrier required those cars move immediately and directly to Providence, RI when WNRE-20 arrived at Attleboro before Train WNRE-20 was side-tripped to East Junction Secondary track. That side-trip would bring that train back to Attleboro from where it would continue to Providence. However, Carrier argues that the twenty-six (26) cars were priority and that Claimant clearly admits guilt when responding to the following question in pertinent part:
        "'At Attleboro (Branch 5)--26-0 for Providence for WNRE20 to get,' you did not follow through Mr. Motte brought it to your attention?"


Claimant answered "No, I did not inform the train crew'. The Organization maintains that the above testimony is not an admission of guilt. It points out that the Claimant was a spare Train Dispatcher called to work that day and from a purely evidentiary point of view Claimant followed all documented instructions. No evidence was ever introduced that would suggest Claimant should move the cars to Providence, RI first or should have known to do so and so ordered the train crew. The Claimant testified as to why the order was not given on March 22nd as follows:
        'He was scheduled to go on to East Junction Secondary and when he returned from East Junction Secondary I would have informed him to pick up the cars for Providence. There was nothing specifically stated on the Chief Dispatcher's transfer that WNRE-20 was to handle the cars to Providence before going on the East Junction Secondary.'

                    Award Number 25311 Page 3

                    Locket Number TD-25288


It follows from the case at bar that the central issue is whether the Claimant knew or should have known of the preferenced movement of the twenty-six (26) cars to Providence, before the side-trip was made. This point is critical, since it remains incumbent upon Carrier to establish an asserted violation by substantive evidence. The evidence of record establishes that those cars were moved from Attleboro, MA to Providence, RI by Train WNRE-20 on the date in question. It establishes that the first time Claimant was aware of the need for cars to move first to Providence, before the side-trip was made, was at 11:20 and at that time he so ordered the move. As such, without substantial evidence to find Claimant in violation of any instruction in allowing Train WNRE-20 to take the side-trip first, we find that Carrier did not meet its burden in this case. There is nothing in the record to substantiate that the Claimant, in these events did not act in a reasonable manner.
Carrier clearly has the right to require and expect its employes to comply with its Rules and instructions correctly and rapidly. A delay in the movement of cars is a most serious offense in that it may damage products, disturb contracts, cost monetary losses and undermine the transportation credibility of the Carrier in the business community. In the case at bar, however, this Board finds that it must rule that this delay was without the burden of proof necessary to substantiate a finding of guilt (Third Division Award 13691; 19506). As such we must sustain the claim as presented to the Board.
        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 this 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


Attest:
        Nancy er -'Executive Secretary


Dated at Chicago, Illinois, this 28th day of February 1985.