Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29139
 THIRD DIVISION Docket No. MW-28694
 92-3-89-3-51
 The Third Division consisted of the regular members and in
 addition Referee Lamont E. Stallworth when award was rendered.

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The twenty (20) working days' suspension assessed to Messrs. L. Nemec and A. Sundem for alleged responsibility in connection with the open switch incident on the House Track at take Bronson, Minnesota on October 19, 1987 was arbitrary, capricious and in violation of the Agreement (System File 8540 #1490/800-16-A-87).

 (2) The records of Messrs. L. Nemec and A. Sundem shall be cleared of the charges and they shall each be compensated for all wage and benefit loss suffered including overtime, vacation and fringe benefits."

 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.

This claim concerns the twenty working day suspensions given to Claimants in connection with an accident on the House Track at Lake Bronson, Minnesota, in which a utility tamper was destroyed in a collision with an Extra Train. On October 20, 1987, the Regional Engineer wrote identical letters to the Claimants concerning this incident:
Form 1 Award No. 29139
 Page 2 Docket No. MW-28694
 92-3-89-3-51
 Due to your failure to restore the main track switch
 to its normal position per General Code of Operating
 Rule 1040-B, you are immediately suspended from ser
 vice of the Soo Line Railroad.
 Per existing Agreement with Maintenance Employes, you
 are entitled to a hearing, if you so desire. I sug
 gest you contact your Union Representative for advice
 on protection of your rights."

 On October 30, 1987, the Regional Engineer informed each of the Claimants that "your discipline is twenty (20) working days off from work and you may return to work on November 17, 1987 if a position in available." The Hearing in this matter was held on February 23, 1988. On March 3, 1988, Carrier confirmed the discip
The appeal has two components, which the Board will address separately. The Organization initial the requirements of Rule 20(b) when it initially scheduled the Hearing for November 18, 1987, which was more than ten days after the Organization requested a Hearing. In this this Board and from the First Division sustaining claims when the Carrier did not implement the contractual time schedules for setting hearing dates. In addition, the Organization asserts that the delay in the Hearing until February 23, 1988, prejudiced the Claimants, and that they did not receive the fair and impartial Hearing guaranteed by the contract. The Organization further maintains that the C
The Board has carefully considered the evidence in the record and arguments of the Parties on these threshold due process issues. The Board finds that the organization waived the contractual time limit for setting the Hearing.

 As concerns the merits of the claim the Extra Train Engineer testified at the Investigation that house track when he arrived at Lake Bronson at about 5:45 P.M. on October 19, 1987. He further testified that he was not advised that he would be going into the house track. The Extra Train collided with the utility tamper on which Claimants had worked on that day, and which they had stored on the house track before leaving that area.

 The Board agrees with the Organization that the Carrier's evidence was circumstantial in nature, since it is undisputed that no individual other than the Claimants were present when they left the area. However, the Board has frequently stressed that discipline can properly be based on circumstantial evidence, as long as Form 1 Award No. 29139
 Page 3 Docket No. MW-28694
 92-3-89-3-51
 "Substantial evidence, as understood clearly in this
 industry, has been defined as such 'relevant evidence
 as a reasonable mind might accept as adequate to
 support a conclusion' (Consol. Ed. vs. Labor Board
 305 U.S. 197, 229). In this Board's judgment, there
 exists sufficient probative evidence, albeit cir
 cumstantial, to reach a conclusion of guilt in the




In another Award, this Board noted that circumstantial evidence "can be more probative than direct testimony where the direction and weight of the evidence all point inescapably to the conclusion that Claimant in fact committed the acts or violati Awards 26435, 25599.

 The Board concludes that substantial evidence in the record supports the Carrier's findings, and that the record demonstrates that the discipline given the Claimants was not arbitrary or capricious.




                          By Order of Third Division


Attest:
        Nancy J. v -Executive Secretary


Dated at Chicago, Illinois, this 28th day of February 1992.