The Third Division of the Adjust=ent Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the emaloyee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment ?oard has jurisdiction over the dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
In this case, the Claimant was assigned as an Assistant Foreman on duty at the C&S Trouble Desk, Boston, Massachusetts. At approximately 5:10 A.M. on April 22, 19.."-3, Claimant was observed by the Supervisor of Operating Rules in a position at his work site which, in the opinion of the Superviscr, indicated that Claimant was asleep while on duty. As a result c= the observation, Claimant was instructed to appear for a formal Investigation on the charge: Form 1 Award No. 31444
After an agreed upon postponement, the Hearing was eventually held at which time Claimant was present, represented and testified on his own behalf. From the Board's review of the 60-page transcript, it appears that all of Claimant's due process rights were respected. Following the completion of the Hearing, Claimant was assessed a 10-day deferred suspension. On appeal, the discipline was modified to "a ten (10) day deferred suspension for a two-year period of time.'
The Board reviewed the transcript as well as the Hearing Officer's Decision Letter and the respective positions of the parties as expressed during the on-property handling of the dispute. On the basis of this review and after considering the relative convincing force of the testimony and evidence, the Board concludes that the substantial burden of proof which must be achieved by the Carrier in a discipline case has not been met in this instance. While the Claimant was accorded a fair and impartial Hearing, the discipline imposed subsequent to the Hearing was not supported by substantial probative evidence. Therefore, that portion of the Statement of Claim relative to the imposition of discipline is sustained. The charge and discipline must be removed from Claimant's record.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.