PARTIES TO DISPUTE:




STATEMENT OF CLAIM:



OPINION OF BOARD:
On August 24 1991, Claima== was assigned as Engineer to Crew U34 which was scheduled to wor_s at Amonate Mine. in the course of doubling 38 loads to 19 loads or. the Front Track it was necessary to make several attemvts to effect a coupling on a 1.5°e grade. Just how many attempts, is one of the many questions left unanswered by the transcript. In any event, on August 26. 1991, the Carrier first became aware of burnt rails at the site of the Amonate Mine. Unon investigation it was reported there were five separate burn marks on both the north and south rails, each of which nearly matched the burns on the opposite rail, which required 97' of new rail on the south track and 84, of new rail on the north track. Following discussion with the crew members of Crew U34, a formal investigation was convened to determine Claimants responsibility, if any, for damage to rail at Amonate Mine on August 24, 1991. Claimant was found guilty as charged and assessed 10 days deferred suspension.

 In the course of the investigation the Carrier witness testified that Claimant admitted to him that he had damaged the rail at Amonate. The Claimant denied this assertion at the trial. The Claimant did admit to making two attempts to move the train but in his words, "ran into a stone wall." The Conductor states that possibly three attempts were made. The number is significant because the inspection by the Assistant Supervisor of Tracks disclosed five separate burn marks of various lengths and depths. incriminating evidence points to Crew U34 as the responsible party as there was no proof of another crew being in the vicinity of Amonate Mine during the period in question. Thus, it becomes a question of determining the truthfulness and credibility of the various witnesses, which as we have stated marv times, is a function of the Trial Officer. Unfort-inately the TrialyOfficer offered a disclaimer saying:

                                            Case No. 12 -

                                            Award No. 12


Thus, in this particular case and for the reasons alluded to, we are constrained to make those determinations which normally reside with the Conducting Officer.

 It is auparent the Carrier's primary witness was relying upon a statement which was allegedly made to him by Claimant several days after the incident but presumably in the presence of other witnesses including Engineer B. E. Burl^.ette. That testimony follows:

        "At approximately 2:30 p.m. on that same date of August 26th, 1991, I -as _n the process of leaving the Yard Office with the u36, Mr. J. L. Chapman. Mr. Wright and Mr. Ode:. =o relieve out U34, and as we were in the process of l=eaving Yard Office, we were met by the U35. ~~nd'_ctor D. A. Sanders, Engineer 3~. L. Burn=tt°_, and Brakeman. I then approached Mr. Burnett=_ a=d asked him how bad was the track damaged at :1=mate Mine and he told me it was damaged bad. At that time, Mr. Chapman said: Mr. Stepp, sir, Saturday, at approximately 12:05, while I was in the F=_nt T:ack at Amonate, I burnt the rail a=proximately2 feet. and I said: Mr. Chapman, a=a you tell-_-= me that you damaged the rail at Amonate? He said: yes sir. I said: sir, is this the first time t=at you have made this ...."


The Claimant categorically denies this testimony and in fact, accused Carrier's witness cf lying. The Conductor appeared at the trial and his testimony corroborates that of the Claimant more or less. No attempt was made to call Engineer Burrette by either side which appears rather strange since he was supposedly in the area when Claimant offered his unsolicited confession of guilt. The plot thickens further when it was revealed the Carrier's primary witness was not aware Claimant and his crew were at the Amonate Mine the following day, i.e., Auz.ist - doing shifting, apparently without incident. This is prett-l r?mar_kable considering the testimony of the Assistant Track Super-7'_so= who stated "I've been at this job for 20 months and this is the worst engine burns I've seen."

 Sorting out the facts in t._is case has been a compelling challenge. The Carrier has the burden to prove by substantial evidence the truth of the c=argos. We are no= entirely satisfied they have met this burden. CC=erSely, we are not certain Claimant didn't contribute SCme of t_... :.',_ - ma=_CS -round on tae rn4l aI t the evidence 15 more ~irC'f~S~t=a- than direct. Under the circumstances we feel a Rot=_~=C -.laced on Claimant's record will
 m_,d
 hem ^c_ i i°_ 'eceSS_t f -z -arer'11_--l mcn_toring tine engine Deff_rmanC°Cf the Un_ts ll'-e- ___S C:onz=Ol and we will expunge the 10 d=-.;-
      deferred S '_S-e.^.S '_^.^_.

                                            SBA No. 1063

                                            Case No. 12

                                            Award No. 12


FINDINGS: The Agreement was violated.

 AWARD: Claim Sustained.

        ORDER: The Carrier will make the Award effective within thirty (30) days of the effective date.


Dated at Norfolk, Virginia, this / Sdday of /l , 1993 .

                              '~ F. Euker, Neutral Member


                              S.'R. Budzind Carrier Member


                            -1 i

                            E. E. Watson, Organization Member


Carrier File: EE-RI-91-2
 Or.7. File: D-448-91-2