-UBLIG LAW BOARD NO. 2439
Award No. 140 Case No. 146

 t=ARTIQ Brotherhood of Maintenance of Way Employes
Southern Pacific Transportation Company

 Sf AT~EI_I 1',1'f "1. That the Carrier-violated the cur
 GF_ C_"A Ljerent Agreement when it dismissed
 Mr. J. L. Stanger. Said action being
 excessive, undulv harsh and in abuse
 of discretion.

 2. That the Carrier-i^eW state Claimant
 to his former Carrier position with
 seniority and all other- rights restored
 unimpaired with pay for all loss of
 e·arninos suffered and his record cleared
 of all charges."

Upon the whole record, alter hearing., the Board find=_ that. the parties herein are Carrier- and EatpCayees within the mcanino of the Railway Labor Act, as amended, and that this Board is dulv constituted under- Public Law 89-456 and has jurisdiction of the


Parties and the subject matter.

 'floe record indicates that en the morning of May l:a, 1987.

 Claimant was allegedly involved in an

 c.·mplc·:ev. HS a result OF
argument with another

 this argument Claimant filed an accident

repgr°l: indicating that he had sustained an iniury. lwo days later. by letter dated May 15, 1997. Claimant was notified that he was removed from service and was charged with being involved in an altercation in violation of Carrier fiules tt)7 and Eat>8. Following a hearing, by letter dated May 27. Carrier notified Claimant that he had been found guilty of the allegations and was dismissed from service.


This entire matter was somewhat bizarre, since the Hearing Officer's conduct was very questionable in his interrogation of witnesses. In addition. the strangeness of the entire circumstances was exemplified by the lack: of witnesses to the alleatt·d incident. The only real witnesses who produced testimony which related to the matter were Claimant and tyre other employee !with whom he allegedi%· had had an altercation.- The fellow employee indicated that nothing had occurred except an accidental bump of shoulders. Claimant's testimony indicated something more than that, but he was in a totally passive role based on his tostimony. There was no other testimony qoinq to the heart of the matter.


Carrier insists that there was substantial evidence of record to :,upport its conclusion. Additional 1,,,. Carrier notes that it offered Claimant leniency on two occasions but he did riot respond and refused to accept such leniency. Carrier concluded tnat Claimant was uninterested in continuing his employment with the



Company and that the Claim should be denied. The Petitioner on the other hand attacks the validity of the procedures in the course of the investigation, as well as noting the fact of lack of proof.


An examination of the transcript of the hearings indicates that Carrier has produced virtually no proof in support of its conclusions. The Supreme Court, as well as numerous Boards in this industry, has addressed the question of substantial evidence. The Suoreme Court has said that substantial evidence is more than a more scintilla. In fact, the Court indicated that relevant evidence might be such as a reasonable mind would accept as adequate: in support of a conclusion. As this Board views it, theme was absolutely no evidence in support of Carrier's conclusions. Therefore, the question of the substantiality of the evidence is moot. Carrier has simply not borne its burden of proof in support of its conclusion that Claimant warranted discipline. Based on this conclusion, the Board believes that Claimant shall be reinstated to his former position with all rights unimpaired and with compensation for time lost, less any outside earnings. His record should be cleared of any reference to this disciplinary action.

AWARD
ORDER'
Claim sustained in accordance with the rindinas above.

 Carrier will cemolv with the Award herein within thirty days from the date hereof.

 1. Ivl. L.ieberman. Neutral-Chairman

C. F. F ose. -mployee Member

 San Fransico. California
 i9eq

 .j tuart. Carr