THIRD DIVISION
Award No. 44459
Docket No. 45527 21-3-NRAB-00003-190440
The Third Division consisted of the regular members and in addition Referee Jacalyn J. Zimmerman when award was rendered.
(American Train Dispatchers Association PARTIES TO DISPUTE: (
(CSX Transportation, Inc.
“The burden of proof has not been met by the Carrier. The Carrier has not proven that during the conversation between Ms. Riley and Mr. Sherbet that she was dishonest in the information provided. Without proof, the burden has not been met by the Carrier of her violating CSX Operating Rule 104.2a.
For the reasons contained herein, the Organization requests that the Claimant's record be expunged of this incident, and that she be paid for all time lost, including investigation.”
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.
The Claimant, L.D. Riley, has been employed by the Carrier since 2007. On January 2, 2019, following an investigation, the Carrier assessed Claimant a five-day actual suspension for dishonesty in connection with an alleged conversation with a yardmaster on November 25, 2018.
At the relevant time, the Claimant was employed as a Train Dispatcher at the Carrier’s Jacksonville, Florida Network Operations Centers. This matter arises out of an incident in which Birmingham, Alabama Trainmaster Aaron Purcell learned that the crew of train Q64724 had been called to come to work at 21:15, which, in his opinion, was too early because there was work still to be done in the terminal, such as setting off cars. The Carrier contends that the fact the crew was called early was an inefficient use of resources and caused excessive congestion at the terminal.
Mr. Purcell spoke to the Chief Dispatcher, who had called the crew; he informed Mr. Purcell that the Claimant had asked him to do so. The Claimant, in turn, maintained that she took this action because the Yardmaster told her the train did not have any remaining work.
The Carrier contends that the Yardmaster denied giving the Claimant this instruction, and that is the basis for the instant dishonesty charge. However, the Carrier failed to call the Yardmaster as a witness at the hearing, relying instead on hearsay accounts from other witnesses. While hearsay is admissible in arbitration, the resolution of the credibility conflict between the Claimant and the Yardmaster was critical to the outcome of this case. In these circumstances we find that, by failing to call the Yardmaster, the Carrier has not met its burden of proof.
Claim sustained.
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 10th day of June 2021.