CARRIER HAS BURDEN OF PROOF IN DISCIPLINE (22)

First Division Award No. 24101 (Fletcher)

"Claimant was assessed a letter of censure on February 29, 1990, following an Investigation on a charge in connection with a delay to his train on February 4, 1990. Study of the transcript of the Investigation fails to establish, in the circumstances present, that Carrier adequately demonstrated that Claimant was guilty of the charge. The discipline assessed will not be allowed to stand. The letter of censure must be removed from Claimant's record."

First Division Award No. 24104 (Fletcher)

"We have studied with care the transcript of the Investigation and do not find that it contains sufficient evidence that Claimant violated any operating rule or instruction or was responsible in any way for the collision. While there are some comments that perhaps Claimant may have been operating without air on all cars within his train, these comments are inconclusive. Claimant may have been operating in accordance with accepted practices followed in the yard. Nonetheless, the evidence is inconclusive that even if all cars had air that Claimant contributed to the accident.

"The transcript does not contain adequate evidence to support discipline. The Claim will be sustained."

Fourth Division Award No. 4316 (Suntrup)

"By long established precedent this Board cannot set itself up as a trier of fact to resolve conflicting testimony and under such conditions will not substitute its judgment for that of Carriers (Third Division Awards 16281, 21238, 21612). At the same time, however, the Board is bound by criterion of substantial evidence which has been defined as such `relevant evidence as a reasonable mind might accept as adequate to support a conclusion' (Consol. Ed. Co. vs Labor Board 305 U.S. 197, 229). The Claimant presents factual, corroborating evidence to the effect that the disputed report was filed. Although the Carrier questions the Claimant during the investigation about why he made a copy of the report, it appears to the Board that this is adequately and reasonably answered by the Claimant when he states that he did so as a precaution because past experience showed that the office sometimes did not receive original reports which he had submitted. Nor does the Carrier, in the record, argue that such procedures as those used here by the Claimant are so extraordinary. The burden of proof in discipline cases rests with the Carrier (Second Division Awards 5526, 6054; Third Division Awards 22292, 22760). In the instant case the Carrier has not sufficiently shouldered the burden to warrant conclusion that the claim not be sustained. The Carrier shall, therefore, compensate the Claimant for all time lost due to the suspension at bar and shall clear his record of the same."

Fourth Division Award No. 4462 (Eischen)

"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."

Fourth Division Award No. 4324 (Miller)

"The Carrier has not convincingly established the existance (sic) of a controlling practice that would indicate that Mr. McCormick knew of the substance of the special instruction.

"Overhead suspension in this case cannot be upheld. The Carrier has not shown that Mr. McCormick had direct or indirect knowledge of the special instruction. Mr. McCormick cannot be held responsible for that which he did not know."

Fourth Division Award No. 4059 (Larney)

"This Board, upon a close and careful review of the hearing transcript and a critical assessment of the arguments advanced on both sides, determines there is an overwhelming lack of evidence to support Carrier's charge Claimant absented himself from duty. There is nothing of a conclusive element to any of the testimony offered which we ascribe to be of particular failing to Carrier's position since it is the party that bears the burden of proof. We wish to emphasize that we did not arrive at this determination based on comparing testimony of the various witnesses nor did we engage in attempting to assess credibility. While we acknowledge discrepancies in the testimony offered we find this to be subordinate to the fact that neither side proffered any probative evidence to support its position and as we previously stated this was fatal to Carrier's case."

Third Division Award No. 23864 (Vernon)

"We are lastly confronted with the question as to whether the degree to which the charges were proven support the supreme penalty of discharge. It is our conclusion that the Carrier has not shown that discharge is appropriate. It is our opinion that the charge, while serious to a certain extent, it not worthy or permanent dismissal unless accompanied by a past record showing a series of progressively severe penalties aimed at correction. As best we can determine, this is the Claimant's first offense. We are mindful that this Board has been slow to substitute its judgment for that of the Carrier. It is our function not to review penalties in light of what we would have meted out if we were the Carrier but in light of whether the penalty is arbitrary or capricious. It is our opinion that any penalty beyond 120 days is arbitrary and capricious. We, therefore, direct the Carrier to compensate the Claimant for all time lost only as a result of the discharge beyond a date of 120 days from the date of discharge. Other items requested in the claim as damages are denied as they are not supported by the Agreement."

Second Division Award No. 11941 (Meyers)

"This Board has reviewed the evidence and testimony, and we find that the Carrier has not met its burden of proof that the Claimants were in violation of any Carrier Rules. The Carrier has indicated that the Claimants failed to `be alert and devote themselves exclusively to the Carrier's service' and that `employees must not be indifferent to duty' in violation of Rules H and J. However, a thorough review of the transcript does not reveal that the Claimants were in violation of any Rule. It is true that there was a car that had a serious problem and that the Claimants had been assigned to inspect it. However, the Carrier has not proven, with sufficient evidence, that the Claimants were in violation of any Carrier Rules nor has the Carrier proven which, if any of the two Claimants was responsible for the poor inspection. Therefore, the Claim must be sustained.

"Claim sustained."

Fourth Division Award No. 4707 (Carter)

"As to the merits of the dispute, the issue of substantial evidence in support of the charge against the Claimant gives the Board serious concern. We have reviewed the transcript of the investigation, and it is the conclusion of the Board that Claimant did everything that could reasonably have been expected of him under the existing circumstances. We do not find substantial evidence in the investigation to support the discipline assessed Claimant."

Fourth Division Award No. 4774 (Zusman)

"The Organization has argued that the hazardous material car arrived after Claimant was off duty. The Organization maintains that Claimant had no knowledge of the car which was not listed on any of the Claimant's switching lists. It argues that the extra cars found were typical of yard conditions.

"The Carrier has argued that Claimant had a responsibility to properly turn over the yard with the correct listing of track conditions. The Carrier argues that in addition to the fact that the conductor was not notified of a hazardous material car in his pickup, evidence clearly shows that Track 1, which was indicated as clear had two industrial cars on it. Tracks 12 and 13 which were marked as clear were not. Track 10 also contained cars not properly listed.

"The record of evidence does not indicate how the hazardous and other cars were moved onto the various tracks. It is not denied that the dangerous car could have been moved prior to Claimant's shift. The Second Trick Yardmaster testified that it is possible in normal operations for a crew to have set off cars without Claimant being advised. Claimant denies any knowledge of the hazardous car in Elmira Yard during his tour of duty.

"In our complete search of the record and full assessment of all arguments raised, we find insufficient evidence to support the charge or show a violation of the Agreement. The Carrier has not met its burden of proof with sufficient evidence that Claimant was responsible for or knowledgeable of the dangerous car and other track conditions. There is insufficient evidence that he should have known or could have known of any of these moves. While this is a very serious issue for the Carrier, it has failed to provide sufficient probative evidence in this record linking the errors to any concrete action of inaction on the part of the Claimant."

Third Division Award No. 29195 (Duffy)

"It is well-established that the Carrier has the burden of proving by `substantial evidence' that Claimant is guilty of the charges. The Supreme Court has defined the term as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion' (Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229).

"Here the Carrier has established only that a vehicle was destroyed and that Claimant suffered personal injuries. The mere fact that Claimant was involved in an accident does not mean that he is presumed to be at fault and subject to discipline. The Board thus concludes that the Carrier has failed to support its finding of guilt by substantive evidence and that such finding was therefore arbitrary. Accordingly, we will sustain the claim."

Third Division Award No. 29319 (Mason)

"Carrier has not met the burden of proof in this record to support by substantial evidence the imposition of discipline. Therefore, it is our conclusion that this claim must be sustained."

First Division Award No. 24269 (Eischen)

"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.

* * *

"Carrier failed to produce probative evidence to substantiate persuasively the two charges placed against the Claimant. Therefore, this claim must be sustained."

Third Division Award No. 30107 (LaRocco)

In addition, the carrier never explained exactly how Claimant was negligent or what else he could have done to maintain control of the vehicle. The Carrier has the burden of proof. The Carrier must submit substantial evidence showing Claimant's negligence. It may not assume negligence simply because an accident occurred. Since the Carrier did not come forward with any proof that the accident was Claimant's fault, the Claim is sustained to the extent provided in Rule 55(a)."

Public Law Board No. 5902, Awd. 6, Case 6 (Peterson) (UTU/Norfolk & Western)

"However, there is no probative evidence of record to conclude, as the Carrier contends, that it was the Claimant's responsibility to have ascertained such a fact. Rather, it would seem to the Board that it was the responsibility of the L99 crew to have informed the Claimant that they were not qualified or unfamiliar with the track territory. In this respect, it is noteworthy that it was the testimony of the Assistant Trainmaster, upon being asked if, when he put out a call for the crew of L99, whether he had instructed the caller to inquire as to whether the crew was qualified in the area in question, that the Assistant Trainmaster said that he not done so, albeit he said that he usually does issue such an instruction to the caller.

Since the Carrier has failed to adequately demonstrate that the Claimant failed to perform his assigned duties in a proper manner, it is concluded that the Claimant was not guilty of the charge. The Board will therefore direct that the discipline be set aside and that the Claimant be compensated for all time lost."

Public Law Board No. 5902, Awd. 9, Case 9 (Peterson) (UTU/Norfolk Southern Rwy)

"In the circumstances the Board finds that the Carrier has not met a necessary burden of proof to substantiate its imposition of discipline."

Public Law Board No. 6076, Awd. 19, Case 19 (Lynch) (UTU/CSX Trans.)

"Carrier has failed in its burden to provide substantial evidence that Claimant was guilty of the charge against him."

Public Law Board No. 6076, Awd. 18, Case 18 (Lynch) (UTU/CSX Trans.)

"Based on the record in its entirety it must be the decision of this Board that Carrier has failed in its burden to offer substantial evidence that claimant was guilty of violating Rule 501(4), consequently the imposition of a 5 day overhead suspension was improper and must be removed from claimant's record."

Public Law Board No. 6485, Awd. 4, Case 4 (Suntrup) (UTU/BNSF)

"As moving party the Carrier bears the burden of proof in this case. There is insufficient substantial evidence of record to sustain the allegation that the Claimant violated Rule 7.13 on the date of October 7, 2000."

Public Law Board No. 6563, Case 1 (Meyers) (UTU/Port Terminal RR)

"The Carrier bears the burden of proof in all disciplinary actions, this Board must find that the Carrier has failed to meet that burden of proof in this case."

Public Law Board No. 5046, Awd. 3, Case 3 (UTU/CSX)

"For the foregoing reasons we find that Claimant was: (1) not afforded due process; and (2) the charge against Claimant was not sustained. We therefore are compelled to sustain the Claim.'

Therefore, it is the conclusion of this Board that the Claim as outlined in the Question At Issue, supra, should be sustained, but only to the extent and within the limitations as set forth in Article 22(d) of the negotiated agreement which states:

'(d) If the final decision decrees that the charge or charges against the employee are not sustained, the record shall be cleared of same and the employee reinstated and compensated for the difference between the amount he would have earned in service and amount he earned from outside employment during the period he was out of service."

Public Law Board No. 3994, Awd. 6, Case 6 (Suntrup) (UTU/Union Pacific)

"The burden of proof in discipline cases rests with supervision issuing the discipline (Second Division 5526, 6054;Third Division 22292, 22180, 11760; Public Law Board No. 3696, Award 1). That burden has not been sufficiently met in this instance. The claim must be sustained in full. Because of the idiosyncratic facts in the instant record before this Board, the Award issued herein sets no arbitral precedent."

Public Law Board No. 3698, Awd. 1, Case 1 (Lieberman) (RYA/Seaboard System RR

"Thus, it is obvious that in the instant case Carrier has not borne its burden of proof with respect to the facts upon which its discipline was based. There is no evidence whatever that there was a violation of Rule G-1 by claimant by virtue of his answers to the questions propounded. The claim must be sustained."

Public Law Board No. 3224, Awd. 6, Case 6 (Van Wart) (RYA/Southern Railway)

"The Board finds that there was insufficient evidence adduced to support the conclusion reached by Carrier that Claimant was culpable and had violated Operating Rules GR-4, 542(a), 1200 and 1201. One question arising is whether Claimant by requesting, in qualified terms, permission of an Operator for a train movement and said Operator had acted before completion of Claimant's request should be held accountable when an incident occurs therefrom? We think not. This record fails to show support."

Public Law Board No. 3224, Awd. 7, Case 7 (Van Wart) (RYA/Southern Railway)

"The Board finds that there was insufficient evidence adduced to support Carrier's conclusion as to Claimant's guilt of the charges placed against him by the notice of investigation."

Public Law Board No. 2786, Awd. 2, Case 2 (Franden) (RYA/Consolidated Rail)

"The Carrier has the burden of proving its case against the claimant by substantive evidence of probative value. The evidence presented in the instant case does not meet that standard. We will sustain the claim."

Special Board of Adjustment No. 1044, Case 39 (Meyers) (UTU/Consolidated Rail)

"There is insufficient evidence of any insubordination on the part of the Claimant. The Carrier charges her with an act of defiance and insubordination; and although the Carrier did not obtain the records that it wanted in a timely fashion, there is insufficient evidence in this record to demonstrate to this Board that there was any insubordination on the part of the Claimant that led to the fact that the Carrier did not receive the medical records in a timely manner. The Claimant's doctor indicated that she had attempted to transmit those records to the Carrier; and if any problem existed in the transmission, it can be blamed either on the doctor or on the failure of the Carrier to route the records to the appropriate people in a timely manner."