Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28704
THIRD DIVISION Docket No. MW-29295
91-3-90-3-196
The Third Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
(CSX Transportation, Inc. (formerly The Seaboard Coast
( Line Railroad Company)
PARTIES TO DISPUTE:
(Brotherhood of Maintenance of Way Employes
STATEMENT OF CLAIM:
"(1) The Agreement was violated when the Carrier assessed W. L. Steed
a five (5) day suspension for leaving work after being told by his supervisor
that he could not be off. [Carrier's file 12 (89-727), organization's file
37-SCL-89-451.
(2) As a consequence'of the aforesaid violation, Mr. W. L. Steed's
record shall be cleared of all charges leveled against him and he be compensated for all time lost a
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 employes 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.
On June 12, 1989, Carrier directed the Claimant to attend a Hearing
on an allegation that he had "...left your job ...without permission..." in
violation of specified rules. ,
Subsequent to the Investigation, the Claimant was suspended for five
(5) days.
The Claimant testified that on the day in question, he asked the
Assistant Foreman for permission to depart the work site early and permission
was granted. He testified that he told the Assistant Foreman that he had some
business to take care of, because he had been rolled and the Assistant said
... you
go ahead and leave
...."
Form 1 Award No. 28704
Page 2 Docket No. MW-29295
91-3-90-3-196
The Assistant Foreman testified that he did not give the Claimant
permission to leave and suggested on two occasions that the Claimant had not
even asked for permission. However, on another occasion he stated, in answer
to the direct question of whether or not the Claimant had asked for permission
to leave "I believe he did."
In specific terms, the Assistant Foreman testified that "He told me
he was going in with the dinner wagon, he didn't have a job anyway, he got
rolled and I told him you do anything you feel like you want to do. I can't
tell you to go, that's up to you
...."
(underscoring supplied)
Another Employee who was present during the discussion generally
confirms the testimony of the Claimant, and states that the Assistant Foreman
gave permission and stated, "He said ok. He said a man has got to do what he
has got to do."
The Claimant states that he did see the Foreman earlier in the day,
but he did not seek his permission to leave early, because at that time, he
had not formulated his plans about a displacement.
The Carrier concedes that there is certain testimonial conflict in
the record, and it did afford benefit of any doubt to the Claimant since it
only imposed a five (5) day suspension. Nevertheless, the Carrier reminds
this Board that a long line of Awards have established and retained the concept that it is not incum
must resolve all questions of credibility.
This Board does not dispute the concepts expressed above. We remind
Carrier, however, that this Board does have the authority and jurisdiction to
review a record to assure that it contains a valid basis for the Hearing
Officer's conclusions. To be sure, it is extremely rare for this Board to reverse a case based upon
there are circumstances where such an action-is taken. Leaving aside any
credibility question, we find that the only evidence against the Claimant is
the Assistant Foreman's testimony. The Roadmaster and the Foreman were not
present at the discussion and thus, their testimony neither harms nor helps
the Claimant. Upon a reading of the entire transcript, we are of the view
that the Claimant could reasonably infer, just from the Assistant Foreman's
testimony, that he was not in jeopardy by leaving in the manner described in
order to attend to another work relatedimatter, i.e. seeing to a displacement.
A W A R D
Claim sustained.
Form 1 Award No. 28704
Page 3 Docket No. MW-29295
91-3-90-3-196
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. v -Executive Secretary
Dated at Chicago, Illinois, this 28th day of February 1991.