Case No. 536
 NUB No. 536


CSX TRANSPORTATION INC.
 VS.
 UNITED TRANSPORTATION UNION

T'
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considered a part of this employee's relevant disciplinary history as related to this particular appeal. On May 3, 2004, while assigned and working Pensacola Yard Job Y150-03, claimant was perceived, by Road Foreman of Engines G. W. Holzworth, as mounting moving equipment. Holzworth's perception was duly reported and, under date of May 7, 2004, Abrams was noticed to attend an investigative hearing. Such investigative notice stated in pertinent part as follows:






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Abrams timely rejected the "rime Out" option and, on May 18, 2004, the consequential investigation was convened in Pensacola, Florida, with Jacksonville Division Trainmaster J. Johnson presiding as the designated hearing officer. Abrams personally appeared, together with his designated representative UTU Local Chairman E. E. Murphy. Both announced ready for trial and confirmed that the carrier's notice had been timely received. However, they both denied the charges and accused the carrier's witness of either faulty perception or willful fabrication. Following completion of such hearing the evidence was presumably reviewed by Jacksonville Division Manager R. R. Downing who, under date of June 7, 2004, issued the following disciplinary notice, to wit (emphasis added or in original:
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Thereafter such decision was timely challenged (claim filed), internally reviewed by the carrier and ultimately referred to this Board for final resolution: FINDINGS: Under the whole record and all the evidence, after hearing, the Board finds that the parties herein are carrier and employee within the meaning of the Railway Labor Act, as amended, and this Board is duly constituted by agreement and has jurisdiction of the parties and subject matter. In our review of the transcript of hearing we find no material procedural error in the manner such proceedings were initiated or conducted. In sum we find that claimant was afforded proper notice and a
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fair and impartial evidentiary review, both in accordance with the contractual due process requirements.
 As regards the substantive issues, this Board is ever mindful that in disciplinary matters it is the carrier that bears the initial burden of proof.' Ergo the evidence offered in support of each carrier allegation must be substantiated by a preponderance of the credible evidence, particularly since the alleged wrongful conduct does not include an act that is of the type normally recognized and punishable under state/federal criminal law.
 Here the carrier's only witness, Foreman Holzworth, presumably testified exclusively from memory (i.e. without reference to any timely made notes or any other corroborative evidence or accredition). Normally that would not pose a proof problem for the carrier, unless he (Holzworth) was proven to have perception problems or a demonstrated bias toward the claimant or the organization. We take arbitral notice that in a normal disciplinary scenario the supervisor's testimony is entitled to great

 1 § 1.93. Formulation of tire Necessary Amount of Proof Formulation of burden-of-proof requirements presents a way of thinking about how a case is proven. The party bearing the burden of proof, generally the employer in discipline and discharge cases and the union in contrad interpretation cases, must present enough competent evidence to persuade the arbitrator as to its claim. That burden of proof is often said to be by the preponderance of evidence in contact interpretation cusses and either clear and convincing evidence or, less often, evidence beyond a reasonable doubt in discipline and discharge cases. The Corrunon Law of the Workplace -2'd Edition, BNA 2005.

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 deference over

 outcome.

 claimant, who is presumed to have a vested stake in the

 However, on this occasion we have other members of claimant's crew who were equally credible, and testified to a materially different set of occurrences. And while this Board is not blind to the existence of semper fidelis among colleagues and comrades in the workplace, there is no suggestion in this record that claimant's crewmembers, who were called to testify, knowingly lied under oath.
 Given such an evidentiary deadlock (equally credible but directly conflicting perceptions and recollections of carrier/organization witnesses) we are necessarily required to have our decision turn only on the fact that, on this occasion, the carrier fell short in fulfilling its proof burden as described hereinabove. AWARD: Given such proof deficiency and the generally recognized "presumption of innocence" concept, we must necessarily answer the issue as follows: S. J Abrams' claim for thirty days backpay and seniority is
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 hereby sustained. Carrier is directed to implement this award within 30 days of the effective date hereof.