PAST RECORD CANNOT BE USED TO ACCESS DISCIPLINE WHEN CARRIER FAILS BURDEN OF PROOF (56)

Fourth Division Award No. 4462 (Eischen)

"Nor was the foregoing testimony by Claimant refuted or contradicted by Clerk Hart, who testified that he was not able to recall whether Claimant had given him the information regarding these two cars or not. The sum and substance of the Clerk's testimony is that Claimant may have done so or may not have done so, but the Clerk was not able to recall whether he did so at the time of the Hearing.

"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. 4795 (Marx)

"This is the only information on which the Carrier determined the Claimant's guilt. There was no smell of alcohol reported. There was no direct questioning as to whether the Claimant had been drinking. There was no order to the Claimant to remain available for alcohol testing. He was simply told that he would not be permitted to work; not surprisingly, he left.

"The Board finds there was insufficient proof that the Claimant was in `violation of Rule G.' Nor can it be reasonably concluded that the Claimant's `actions in leaving the property' were any `further indication' that he was under the influence of alcohol.

"In its dismissal letter, the Carrier referred to the Claimant's continuing `problem with alcoholism.' Previous warnings to the Claimant would be of significance in determining the severity of penalty if guilt had been established as to the incident here under review. In the absence of such finding, the previous disciplinary record is not before the Board for consideration."

First Division Award No. 24404 (Vaughn)

"Neither is the Board persuaded that the consideration of Claimant’s previous train handling violations was improper. It is well established that an employee’s prior violations may not be used to establish guilt in a subsequent Investigation. However, there is no indication is that the Carrier used the information other than in assessing the proper penalty to be imposed."