Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32963
Docket No. MW-33636
98-3-97-3-105
The Third Division consisted of the regular members and in addition Referee
Gerald E. Wallin when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Seaboard Coastline
( Railroad)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The twenty (20) day suspension assessed Foreman L. A. Blanton for
his alleged conduct unbecoming an employe when, on March 22,
1995, he allegedly used a racial slur was without just and sufficient
cause, based on an unproven charge and in violation of the
Agreement [System File 29(19) (95)/12(95-0958) SSY].
(2) The claim referenced in Part (1) above, as presented by General
Chairman Simpson on September 28,1995 to J. H. Wilson, Director
Employe Relations shall be allowed as presented because said claim
was not disallowed by him in accordance with Rule 40 (a).
(3) The Agreement was further violated when the Carrier failed to
provide the Organization a copy of the investigation transcript as
required by Rule 39.
(4) As a consequence of the violations referred to in Parts (1), (2)
and/or (3) above, Foreman L. A. Blanton shall now have the charge
letters and all matters relative thereto removed from his personal
record and he shall be made whole for all loss suffered."
Form 1 Award No. 32963
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FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee 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 Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
As noted in the Statement of Claim, the Organization raised procedural objections
that must be dealt with as a threshold matter.
The Organization asserted, in its initial claim document on the property, that
Carrier failed to provide a copy of the transcript of Investigation as required by Rule
39. In its May 31, 1996 final correspondence, Carrier asserted the transcript was
forwarded as required by the Agreement. Both parties steadfastly maintained those
positions before the Board.
Careful examination of Carrier's letter of August 2, 1995, which imposed the
disciplinary suspension, does not reveal any indication that the transcript was sent to the
Organization as an enclosure. Moreover, no other correspondence has been found in the
on-property record to show if, or when, or under what circumstances the transcript was
sent to the Organization as the Carrier contends. We are left, therefore, with Carrier's
unsupported assertion that it was.
The text of Rule 39 imposes the obligation to furnish a copy of the investigative
transcript upon the Carrier. As a result, the burden of proof is likewise upon the
Carrier to show compliance with that portion of Rule 39. Whether the transcript was
furnished is a question of fact that is material to Carrier's compliance with this
Agreement due process requirement. On the record before us, we have, at best, an
irreconcilable dispute of material fact. Given this state of affairs, we are compelled to
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Form 1 Award No. 32963
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98-3-97-3-105
conclude that Carrier did not prove the transcript was provided to the Organization as
required.
It is well settled that the Board may not consider any evidence that was not
exchanged between the parties during their handling of the claim on the property.
Given our finding that the transcript was not provided on the property, we may not
consider its contents in our review. Lacking a proper transcript, there is insufficient
evidence to support the misconduct charged. The claim must, therefore, be sustained
as presented.
Because of the foregoing finding, it is not necessary to address the other
procedural matters raised by the Organization, let alone the merits of the dispute.
AWARD
Claim sustained.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 23rd day of November 1998.