(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The ten (10) days of suspension imposed upon Bus Driver C. L. Parham for alleged violation of General Rule 'L' on September 14, 1984 was arbitrary, capricious and on the basis of unproven charges (System File NEC-BMWE-SD-1115D).

 (2) The claimant's record shall be cleared of the charge leveled against him and he shall be compensated for all wage loss suffered."

 OPINION OF BOARD: This dispute involves a ten day disciplinary suspension
 which Carrier imposed upon the Claimant because he is said
 to have been sleeping while assigned to the position of Bus Driver on the date
 here involved. Claimant was withheld from service during the period between
 September 14, and September 20, 1984. The Specification of the charges
 placed against the Claimant was as follows:

A Trial was held on September 27, 1984, and concluded on October 4, 1984, with the Claimant and his representative present. Six other witnesses were called to testify in addition to the testimony of the Claimant. Following completion of the Tri for the offense charged and Carrier imposed a ten day suspension. Appeals have been taken by the organization and they have been denied by the Carrier. The dispute has been appealed to this Board and it is properly before us.

 In the handling on the property and in the appeal to this Board, the Carrier relies heavily upon one sentence contained in the initial testimony of the Track Supervisor. That sentence reads as follows:

        "So, I walked around the side of the bus, looked in the window and Mr. Parham was stretched out on the seat back against the window and he was in the position of sleep."

                        Award Number 26573 Page 2

                        Docket Number MW-27040


Upon further examination, the Track Supervisor testified that the Claimant was sitting in a seat with his back against a window in the bus. The Track Supervisor also testified that the Claimant was sitting halfway from the front of the bus.

 In opposition to the testimony of the Track Supervisor, the Claimant testified in detail as to the reason he had gone to the bus and he explained numerous duties in which he was engaged when the Track Supervisor appeared at the front door to the bus. Two Trackmen had observed the incident in question and they were called as witnesses during the Trial. The testimony of these two witnesses was given in detail and their testimony corroborated the testimony of the Claimant.
 In the circumstances related above and other incidents as well, we perceive the testimony of the Track Supervisor to be ambivalent while the testimony of the Claimant and the two Trackmen is clear and direct. Thus, the issue before us is not one of credibility of the witnesses nor how conflicting testimony should be resolved. Our task is to decide whether the relevant evidence in the record is sufficient to substantiate the discipline imposed by the Carrier.

 Upon review and consideration of the entire record, it is our conclusion that the evidence is no Carrier.

        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 J er - Executive Secretary

        Dated at Chicago, Illinois, this 30th day of September 1987.