The Third Division consisted of the regular members and in addition Referee Herbert L. Marx, Jr., when award was rendered.
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 employe 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.
The Claimant was subject to an Investigative Hearing under the following charge: Form 1 Award No. 30223
Following the Hearing, the Carrier found the Claimant guilty of the charge and assessed him discipline of 15 demerits.
Despite the organization's assertion to the contrary, the Board finds the charge was precisely worded and enabled the Claimant to make a full defense.
The Hearing record shows a substantial conflict as to the circumstances in which the Claimant's vehicle was damaged. His testimony that he was forced to leave the roadway because of an oncoming vehicle was disputed by the second-hand report of a supposed witness. The Carrier, however, did not attempt to bring this individual to the Hearing, with the Assistant Trainmaster stating, "I personally didn't feel that his testimony was necessary."
The principal basis of the charge appeared to be that the Claimant. was driving "too fast." There was, however, no evidence to refute the Claimants contention that he was driving within the 20-mile-an-hour speed limit at that location.
While hearsay evidence and/or written statements can be acceptable to a limited degree, based on the circumstances, in this instance the Carrier had no other independent information for its disciplinary action. On this basis, the Board finds the discipline without sufficient foundation. Damage to the Claimant's vehicle did occur, but this alone is not proof of Rule violation.