Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27483
THIRD DIVISION Docket No. CL-27137
88-3-86-3-324
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Railway, Airline and Steamship Clerks,
(Freight Handlers, Express and Station Employees
PARTIES TO DISPUTE:
(The Belt Railway Company of Chicago
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10101) that:
1. Carrier violated the effective Clerks' Agreement when, following an investigation held on Jul
from service for period of twenty-nine (29) days, commencing on July 22, 1985;
2. Carrier shall now compensate Mr. Milan for all time lost and as
a result of this suspension from service, including all potential overtime,
and shall clear his record of the charges placed against him."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employees involved in
this dispute are respectively carrier and employes within the meaning-of-the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant has a seniority date of April 30, 1964. On June 21,
1985, he was directed to report for investigation:
".
. . for the purpose of ascertaining the facts and
determining your responsibility, if any, in connection with
forty (40) waybills interchanged to the MILW (Chicago,
Milwaukee, St. Paul and Pacific Railroad) delivered to the
CNW (Chicago and North Western Transportation Company)
Conductor Batustic with Engine No. 604-605 in error at about
6:00 a.m. June 16, 1985, resulting in twenty-seven (27) cars
being delivered to the CNW Railway without proper waybill
information on June 16, 1985, during your tour of duty as
Switching Information Clerk, Position 384, starting at 10:05
p.m. June 15, and ending at 6:05 a.m., June 16, 1985."
Form 1 Award No. 27483
Page 2 Docket No. CL-27137
88-3-86-3-324
An investigation was held on July 17, 1985, and Claimant was subsequently issued a notice of dis
from actual service for twenty-nine days.
The record discloses that Claimant is a Clerk and on June 15, 1985,
was working Position No. 384, the West Outbound Clerk. His tour of duty
began at 10:05 p.m. and ended on June 16, 1985, at 6:05 a.m. During the
shift following the Claimant's, the Carrier's Chief Clerk, received a telephone call from the C&
was informed that the C&NW was missing twenty-seven waybills and instead had
in its possession a pouch containing forty waybills belonging to the Milwaukee
Railroad. He informed the Trainmaster, who testified that an examination of
the the West Departure Yard waybill box produced a pouch of bills that was
labeled "Milwaukee" but instead contained the twenty-seven missing C&NW
waybills. Further investigation of the incident revealed that the twentyseven waybills were improper
6:00 a.m. on June 16, 1985, during the Claimant's tour of duty.
The Organization contends that Carrier has failed to prove, by a preponderance of the evidence,
Organization's view, the record supports the conclusion that the waybills
could have been handled by any number of other employees and that there was no
evidence to prove that Claimant was responsible for the error. Additionally,
the Organization argues that, even assuming, arguendo, that the evidence supported the charge
and unreasonably harsh under the circumstances, since, at worst, Claimant's
alleged error did not result in any financial liability or any other adverse
effect upon the Carrier.
Upon careful review of the record and the evidence adduced at the Hearing,
we are satisfied that no basis exists for disturbing the discipline assessed in
this case. The substance of the Organization's argument is based upon an incorrect premise; i.e., th
a "preponderance of the evidence." As numerous Board Awards have established,
Carrier's burden of proof is one of "substantial evidence," meaning "such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Third Division Award 24308. Also see, First Division Award
16785, Third Division Award 9449.
The evidence elicited at the investigation is clearly substantial and
sufficient to prove Claimant's culpability. Claimant himself admitted during
the investigation that he handled all the waybills during his shift on the
night in question; that all handwriting on these bills was his handwriting;
and that he sent all the bills to the conductor of the C&NW train. Although
the Organization maintained that someone else who had access to the waybills
could have been responsible for the error committed here, we find that arguwant speculative at best.
utilized by him, we find that Carrier has met its burden of proof.
Form 1 Award No. 27483
Page 3 Docket No. CL-27137
88-3-86-3-324
Nor do we find that the discipline imposed was excessive as urged by the
Organization. Claimant's prior disciplinary record indicated that he has
exhibited similar misconduct in the past, and that most recently he had been
assessed a fifteen-day suspension for misrouting waybills. Under these circumstances, Carrier's asse
improper.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
__ _
Nancy J. Aofr - Executive Secretary
Dated at Chicago, Illinois, this 22nd day of September 1988.