Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35606
Docket No. MW-35265
01-3-99-3-113
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:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline (time held out of service from August 20, 1997
through and including September 1, 1997) assessed Machine
Operator J. A. Bellefeuille, Jr. for `Your violation of the Conrail
NORAC Operating Rules 801, 807(c), and 80, Sixth Edition,
effective January 1, 1997, and your violation of Conrail Safety
Rules and Procedures, Engineering, effective May 1, 1995, Rule
63.3, No. 6, and 63.3, No. 11, whereas on August 19, 1997, at
approximately 10:00 A.M., at CP 482, while operating Track Car
ME5056 you collided with Track Car MP0911 which caused
extensive damage to Track Car MP0911.' was without just and
sufficient cause, based on an unproven charge and in violation of the
Agreement (System Docket MW-4989-D).
(2) As a consequence of the violations referred to in Part (1) above,
Machine Operator J. A. Bellefeuille, Jr. shall now `. . . be
exonerated of all charges and be compensated for all wages,
including holiday pay, plus all credits and benefits denied to this
unjustified decision."'
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form I Award No. 35606
Page 2 Docket No. MW-35265
01-3-99-3-113
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.
When the Submissions regarding this disciplinary dispute are examined, it is seen
that no transcript
of
the Investigation Hearing held August 28, 1997 was included. The
lack
of
a transcript presents us with an evidentiary void in support
of
the Carrier's
action. Given that the Carrier solely bears the burden of proof to establish the propriety
of its disciplinary decision, the absence of a transcript leaves us no choice but to find that
the Carrier's burden has not been satisfied. We are compelled to sustain the claim. See
Third Division Awards 23015, 27160 and 28671.
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 24th day of July, 2001.