SPECIAL BOARD OF ADJUSTMEnT N0. 924

4ward No. 49 Docket No. 57 PARTIES: Brotherhood of Maintenance of ,day Employes TO ; DISPUTE:, Chicago and North Western Transportation Company

STATEMENT,OF CLAIM: "Claim of the Sys"em Committee of the Brotherhood that:

(1) The sixty (60) day suarension assessed Foreman J. C. Meeker for allegedly failing to properly perform his duties and allegedly falsifying his work report was without just and sufficient cause and on the basis of an unaroven charge. (Organization File 3D-4185; Carrier File 81-84-121-DT.

(2) Claimant J. C. Meeker shall-be allowed the remedy pre scribed in Rule 19(d)."

FINDINGS:

This Beard, upon the whole r-cord end all the evidence, finds and holds shpt the employes and the Carrier involved, are respectively emnloyes and Carrier within the meaning of the Railway Labor Act as amended, and that the Board has jurisdiction over the dispute herein.

On October 13, 7.983, claimant eras employed by the Carrier as a track foreman at Barr, Illinois. On that date he was resvonbile for the installation of switch ties at Sweetwater, which the Carrier advises is about nine 'miles north of Barr. Claimants crew consisted of himself and two trackmen.

The Carrier states that at aonroximately 11:45 A.M., on the date involved, a Quality Control Inspector end a Track Suvervisor -ere operating a hy-rail vehicle northpard for the purpose of insoectLnx track. When the officers reached Sweetwater at 11:45 A.M. they observed that four ties had been installed, but there were no emoloyes at that location. They returned to Sweetwater about 12:50 P.M. 2nd observed claimant and one of the trpckmen assigned to the gang, sitting in the truck "leaning back ... In a reclining position."

On October 14, 1983, claimant was notified to report for formal investigation scheduled for 10:00 A.M., October 20, 1983, on the charge:

"To deer-ine your responsibility for failure to Properly perform your duties and for falsifying your work report when you failed to perform any service at aooroximately 1:00 P.M. on October 12, 1983."

The -investisretion was postponed and conducted on N vember 23, 100. Following the investisation, claimant was assessed

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aiscipllne of six "y days suspension. A onpy of the transcr`pt of the investigition has b?en made a port of the record. In the investigation claimant's representative objected to claimant being cuestioned before other "Company witneses." On anneal the contention was mode that such a procedure deprived claimant of a fair and impartial hearing, which contention is also made in submisvion to this Board. In Award No. 48, Docket No. Q, we Dashed upon this issue, holding:

"In the investigation, on anneal, and in submis-ion to this Board, representatives of the Organization have contended that claimant was denied a fair and Impartial hearing because of being ouestioned first by the conducting officer

_ before auestioning Carrier's witnesses. The Board finds no

proper sur··ort for such contention. We have been referred

to no rule in the Agreement specifying the order in which

statements will be taken, or witnep p s t-stify in on

nrooerty disciplinary proceedings: As has been held on

numerous occflsions, railroad disciplinary uroceedines are

not court proceedings and strict rules of evidence do not

annly. See Thin' Division Award. No. 24285, amomd others."

In its sufinis7-ien to this Board the Organization also contends that claimant was deprived of a fair and impartial investihation because the conductin, officer did not render the decision. The contention is also made that as the dealding o`ficer was also the initial appeals officer, claimant was deprived of his right to an independent and unbiased review of his ca-e. This Board has paswed upon similar contentions in Awaras Nos. 9,14, lfs and 19. In our Award No. 19 we held:

"The Organization hAs raised procedural contentions that the officer who conducted the investigation did not render the disci911nary decision, arid that the deciding officer also served as fir<t anneals officer: This Board has heretofore passed upon similar procedural contentions in our Awards Nos. 9, 14 and 16. .=. We consider those decisions controlling and will dgny the Organizotion's nrocpdurol contentions herein

We will follow our prior awards and deny the Orffanization's procedural contentions in the present case.

In the investigation there was substantial evidence that claimant and Another employe were observed in a reclining position in the truck -t about 12:50 or 1:00 P.M., October 13, 1953. The clwimaht denied being in a reclining position in

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the truck, but contended thpt he was making out a work report and ma'ring up a list of material for the neat day. He stated th^t the other employe eras in the truck because he had a toothache.

Wht le th=re were confj' icts between the t-stimony of the claimant add others in the in·Testicetion, it is cell settled thflt a Board of t4h is nature does not reiFh evidence, artempt to resolve conflictp there;n, or pass upon the credibility of oritne=ses. Further, the Bo^rd,mav not rroperly reverse a Carrier's actton simply because of conflicts in testimony:

Based unon the entire record, the Board. finds no proper basis to interfere wtth the discipline imposed by the~CQrrier.

A W A A D

Claim denied.

i

hairman, Neutral Member

C _ i _- mb. Labor Member

D.qtp.d: ct 3 /9~