YARDMASTER DEPARTMENT AWARDS
|SUSPICION AND SURMISE
"This is a discipline case in which Claimant was given a ten day suspension because he allegedly was responsible for certain traffic not being picked up by Soo Line Train No. 201 on December 16, 1986 while he was working as an extra Assistant General Yardmaster at Gibson, Indiana. Carrier maintains that Claimant failed to coordinate his activities with yard crews so that certain time sensitive truck-rail traffic could be switched out and made available for a prompt pickup by Train 201 upon its arrival.
"We have examined the testimony adduced at the investigation and conclude that Carrier's decision to assess discipline is based almost entirely upon surmise and conjecture. From our reading of the transcript it seems that Carrier proceeded under the assumption that it is important to protect this traffic, the pickup was not made, ergo, Claimant was responsible. Suspicion, surmise and conjecture cannot be used to fill an evidentiary gap. Carrier has the burden of persuasion in disciplinary cases and this burden has not been met here.
"The claim will be sustained."
"Of course, the mere opinions, conclusions and suspicions of witnesses carry no weight and there must be sufficient proof of the facts to establish, upon an evaluation of the entire record, that an employee actually engaged in the misconduct upon which his discipline rests."
"It is axiomatic that in claims of this nature Carrier has the burden of proving by competent evidence the charges brought against the employee. While as a rule this Board is reluctant to substitute its judgment for that of the Carrier we are compelled to do so whenever Carrier fails to prove the charges by substantive evidence.
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"This Division held in Award 1850 that `The record in a discharge case should be clear and complete and while this Board ordinarily will not substitute its judgment for that of Carrier in matters of discipline, it has no alternative but to do so when the record is defective or the Carrier's action is unwarranted.' We find that reasoning applicable to the claim before us and conclude that Carrier has not proven the charges against claimant. We are thus left no alternative but to allow the claim."
"We have scrutinized the record in this regard and find nowhere therein any corroborating evidence that Claimant was in fact warned and placed on actual notice. Our Board has on numerous occasions held that bare assertions by either party, unsupported by any documentary or testimonial evidence, are not alone sufficient to carry a requisite burden of proof. Indeed, the only piece of documentary evidence on this point is the switching list for August 2, 1972 which carries no indication that the cabled cars were among those on Track 2. Nor can we conclude from this record that mere presence on August 9 when the bad order cars arrived intermixed with other cars was sufficient to place Claimant on constructive notice not to hump them. In light of all the foregoing we are compelled to hold that there is not substantial evidence on this record to support Carrier's conclusion that Claimant negligently caused the derailment. Accordingly, we have no recourse but to sustain the claim.
"We are cognizant of Rule 4-G-1 (k) (sic 4-K-1 (k)) of the applicable Agreement and consistent therewith hold that any compensation due Claimant as a result of his disqualification shall comprise the difference, if any, between the amount of money he earned working as a Trainman since August 10, 1972 and the amount he would have earned as a yardmaster but for his disqualification."
"This Board also finds that the Company has failed in its burden of proving a violation of Policy #2. We need look no further (sic) than the policy itself. Policy #2 prohibits `claiming sick pay as a result of falsification of an injury' (emphasis added). Claimant was not injured, he was ill. The proper charge here would have been falsification of illness, which is treated separately. Section C (1) of the Company's Policy on Conduct and Discipline provides that `falsification of an illness' is a `Less Serious Offense,' for which discharge is the penalty only for the third offense. The appropriate discipline, if the charge could have been proven, should have been a one week suspension.
"Accordingly, it should be noted that the record lacks any evidence of an attempt to obtain sick leave falsely. There was no showing that Claimant falsified his illness or that he altered the return-to-work slip. The Company's conclusion that Claimant did not see the doctor is not supported by the record. The only evidence suggesting such a conclusion is the fact that the doctor did not write Claimant's name down on his patient chart and that the doctor could not remember examining Claimant. The Company's call to the doctor's office was made four days after Claimant's alleged visit, and it is not surprising that the doctor did not remember Claimant, who was one of approximately forty or fifty patients that day.
"Accordingly, Claimant should be reinstated to his former position with all rights unimpaired and with full back pay."
"Despite pages of conflicting testimony, accusations of racial prejudice, and a less than model hearing, what the record reveals is this: there was not one iota of evidence which indicated that Claimant had any intention of stealing the tires. Claimant, in broad daylight, seventy-five yards in front of the Special Agent's Office, loaded eight tires into his car. He was hardly driving at 'getaway' speed. Where did the tires come from? That is difficult to say. However, in light of the fact that Claimant did not have the means of opening the door of car RI28435 far enough to slide out eight tires, it is doubtful that that is where he got them. The whole affair might have been avoided if the Special Agent had simply allowed Claimant to identify himself and explain his intentions.
"In view of the foregoing, this Board finds that the Claimant's alleged guilt was not proven.
"The Organization requests that Claimant's record be cleared of all charges, that he be reimbursed for the forty-five day suspension, that he be reimbursed for all legal fees necessary for the civil action, and that he be reimbursed for the charges necessary to retrieve his car from the police pound. It is not within the jurisdiction of this Board to award either the legal fees or the charges necessary to retrieve Claimant's car. However, Claimant is to be fully compensated for all time lost, with seniority rights and other rights unimpaired."
"The evidence of record regarding Claimant's culpability is at best in a state of balance or equilibrium. There is no preponderance of probative record evidence that Claimant was guilty as charged. This failure of proof must go against Carrier which has the burden of persuasion in the disciplinary case. Suspicion, surmise and conjecture cannot be used to fill the evidentiary gap. See National Railroad Adjustment Board First Division Award 20471; Second Division Award 6713; Third Division Award 20766; Fourth Division Award 3633. Nor can Claimant's prior discipline record, which admittedly appears to be deplorable, be used to justify the present disciplinary action against him in the absence of independent proof that he was guilty of the instant charged offense. That prior record, if accurate, certainly would justify the imposition of severe discipline if he had been proven guilty of the present charged misconduct. But in the absence of persuasive evidence on the critical question of instant culpability, the past record is without relevance or materiality to this case. Based upon all of the foregoing, we have no alternative but to sustain this claim."
"The Board scrutinized this record for any probative evidence to conclude that the Claimant was in the crane path, rather than reports from memory on statements made. There is no such evidence. Neither Supervisor was at the scene of the accident. There was no written report taken of the Claimant's remarks. The Claimant clearly denied that he was in the crane path when struck. The pictures presented are inconclusive. The only independent testimony presented at the Investigation was by a Carman. He reported that he heard no alarm from the crane as it moved and most importantly, that the Claimant '. . .wasn't in the crane path.'
"This Board is well aware that it has no authority to resolve issues of credibility or contradictory testimony. Awards too numerous to mention have enumerated our appellate role. We stand here to determine if there exists substantial probative evidence to reach a conclusion of guilt. The weight given by the Carrier to its evidence is not substantial. The record is based on presumption, rather than fact. The Board finds the record is inadequate to support a conclusion of guilt.
"While the Carrier must be attentive to safety and require all employees to be diligent, the case at bar lacks the clearly established facts to prove that Claimant violated safety procedures."
"After reviewing the Investigation record, this Board finds that there were at least six plausible and reasonable explanations, aside from the Claimant's alleged culpability, for creating slack in this particular consist of cars. In addition, the Carrier failed to marshall sufficient evidence showing that claimant created the slack or that he misapplied the brakes. Since there were other reasonable explanations that would explain the cause of the derailment aside from the Carrier's conclusion, the Carrier disciplined Claimant based on mere speculation and without proffering substantive evidence to support its finding of guilt."
"It was incumbent upon the Carrier to prove the conclusions upon which it premised its discipline of Claimant: 1) Responsibility for the damage to Unit 4414; (2) Failure to report the damage. With regard to the damage itself, the MIC noted that the crew would have exited the unit on the side opposite to where the damage had occurred. Further, the MIC's testimony established that 'it was difficult to see.' While it is conceivable that the damage did occur sometime when Claimant was operating the unit, Carrier was not successful in proving that material fact. Speculation and conjecture are no substitute for persuasive evidence. The damage was not discovered until approximately five hours after the crew tied up, so it was equally probable that the mishap may have occurred during in that interval.
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"Carrier failed to produce probative evidence to substantiate persuasively the two charges placed against the Claimant. Therefore, this claim must be sustained."
Last modified: April 29, 2005