Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36279
Docket No. SG-35925
02-3-99-3-827
The Third Division consisted of the regular members and in addition Referee
James E. Mason when award was rendered.
(Brotherhood of Railroad Signal men
PARTIES TO DISPUTE:
(Grand Trunk Western Railroad
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Grand Trunk Western Railroad (GTW):
Claim on behalf of J.D. Buck, Sr., for payment of all time lost and benefits
and restoration of his seniority as a Signal Foreman, as a result of his
discipline and for any reference to this matter to be removed from his
record, account Carrier violated the current Signalmen's Agreement,
particularly Rule 42, when it failed to provide the Claimant with a fair
and impartial investigation and imposed harsh and excessive discipline
without meeting the burden of proving its charges in connection with an
investigation conducted on October 27,1998. Carrier's File No. 8390-1.
118. General Chairman's File No. 98-77-GTW. BRS File Case No. 10949GTW:'
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.
Form 1 Award No. 36279
Page 2 Docket No. SG-35925
02-3-99-3-827
Parties to said dispute were given due notice of hearing thereon.
This is a discipline case in which the Claimant, who was assigned as a Signal
Foreman at Flint, Michigan, was withheld from service on October 19 and notified to
attend a Hearing on October 27 on a charge of harassment/intimidation on September
21,1998. The Hearing was held as scheduled at which time the Claimant was present,
represented and testified on his own behalf. Subsequently, by letter dated November
12, 1998, the Claimant was notified that he had been found guilty of the charges and
was disciplined by loss of his rights as a Foreman and was suspended without pay
covering the period October 19 through November 16,1998, inclusive.
The Organization's appeal argued that not only had the charges been untimely
made by the Carrier, they had not been proven at the Hearing.
Rule 42 - DISCIPLINE reads as follows:
"RULE 42 - Discipline.
An employee who has been in the service for more than ninety (90) days
will not be disciplined or dismissed without a fair and impartial hearing,
at which he may be assisted by a duly accredited representative. He may,
however, be held out of service pending such hearing, which will be held
within ten (10) calendar days of the date held from service. The hearing
shall be held within twenty (20) calendar days of the date when charged
with an offense when an employee is not held from service. No charge
shall be made that involves any offense of which the company has had
knowledge twenty (20) calendar days or more except where a civil action
or criminal proceeding results from the offense, in which event the charge
may be made within twenty (20) calendar days of the final Judgment.
Prior to the hearing the employee shall be apprised in writing of the
charge sufficiently in advance of the time set for hearing to permit his
having reasonable opportunity to secure the presence of necessary
witnesses. A written decision
will
be rendered within twenty (20)
calendar days after completion of hearing.
» s r
Form 1 Award No. 36279
Page 3 Docket No. SG-35925
02-3-99-3-827
If the charge against the employee is not sustained, it will be stricken from
the record. If, by reason of such unsustained charge, the employee has
been removed from the position held, reinstatement will be made and he
will be compensated for wage loss, if any suffered by him."
The Carrier attempted to explain away its admitted time limit violation by
stating that "circumstances dictated that the Carrier act cautiously before formally
charging Claimant." In addition, the Carrier contended that the transcript supported
the finding that the Claimant was guilty and that the delay in making a charge and
holding a Hearing "does not automatically nullify the disciplinary proceedings. . . :'
Without spending much time on the Carrier's admitted violation of the time limit
requirements as outlined in Rule 42, the Board is obliged to point out that in a discipline
case the Carrier has the burden of proving by substantial evidence that an accused
employee is guilty of the charges made. The U.S. Supreme Court has defined the term
"substantial evidence" to wit:
".
. . such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion" (Consolidated Edison Co. v. NLRB 305
U.S. 197, 229).
The Board carefully reviewed the testimony presented at the Hearing and can
conclude only that the Carrier's decision to assess discipline is based almost entirely on
suspicion and conjecture. There was no first-hand witness testimony to be found in the
Hearing transcript. The accuser said one thing. The accusee said something different.
No one who testified actually saw anything. Suspicion, surmise and conjecture cannot
be substituted for "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."
On the basis of the record in this case, the Carrier simply did not meet its burden
of proof. The claim is sustained.
AWARD
Claim sustained.
Form i Award No. 36279
Page 4 Docket No. SG-35925
02-3-99-3-827
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 28th day of October 2002.