AWARDS 74 - CARRIER FAILS TO PROVIDE BOARD WITH COPY OF TRANSCRIPT

Fourth Division Award No. 4409 (O'Brien)

"It is undisputed that the burden rests with the Carrier to prove that the 30 day suspension issued the Claimant was supported by substantial evidence of probative value. It is the responsibility of this Division to review the evidence presented at the Claimant's February 22, 1982 investigation to determine whether the Carrier has sustained this burden imposed on it. However, for some unexplained reason, the Carrier has failed to furnish us a transcript of that investigation. Absent such a record, this Division has absolutely no way of determining whether the Carrier's imposition of discipline was, in fact, supported by substantial and probative evidence. In our judgment, failure to submit a transcript of the February 22, 1982 investigation was a fatal flaw on the Carrier's part and is dispositive of the claim now before us. Accordingly, this Division finds that the Carrier has not sustained the burden imposed on it and the instant claim must be sustained as a result."

First Division Award No. 11364 (Yeager)

"In this connection, it may well be said that the carrier's is not the last word on the question of suspension. The last word under the processes of the Railway Labor Act is the word of this Division. The Division has the right to review the action of the carrier for at least the purpose of determining the question of whether or not the Carrier acted without warrant, or unreasonably or arbitrarily. This Division could not determine this question intelligently in the absence of a record of full investigation."

First Division Award No. 12140 (Cahn)

"This docket fails to disclose any legal proof by way of a transcript of testimony concerning the propriety of claimant's discharge. The Carrier thus failed to sustain the burden of proving the truth of its charges and the claimant cannot properly be subjected to discipline."

First Division Award No. 12424

"The record does not contain a transcript of this investigation, nor does it show upon what charge discipline was assessed. It does not show that Conductor Lowery was negligent in the performance of his duties."

First Division Award No. 14351 (Guthrie)

"It goes without saying that one of the purposes of such a trial is to develop the facts so that the proper penalty, if any, may be invoked. In the absence of such a record this Division is in no position to determine whether a particular penalty is justified or arbitrary and capricious."

First Division Award No. 16955 (Ferguson)

"From the record, we are unable to determine whether the insubordination, if any, occurred January 20th or later. There must have been some action in addition to the discharge, which occurred January 24, 1950. Whether it was an investigation, or merely a delayed decision cannot be determined in the absence of a transcript."

First Division Award No. 20426 (Daugherty)

"This Division's determination of whether carrier properly adhered to these requirements in its actions beginning January 15, 1954, and through February 5, 1954, must, as always, rest on the facts derived from a study of the transcript of carrier's investigation and of admissible evidence in respect thereto - in this case the investigation of February 1, 1954. Unfortunately, it must be reported that carrier, on whom the burden of proof must be said to rest in such cases, has submitted to the Division not the full text of said transcript but only one or two short excerpts therefrom. (Petitioner has also contented itself only with presenting three excerpts. But petitioner's burden here was the lesser one.) Under these circumstances the Division finds itself unable to reach firm conclusions that carrier sustained its obligation to establish that its actions in all respects complied with (1) the agreement's requirements and (2) the Division's criteria for determining discipline cases. In short, the Division is unable fully to satisfy itself that just cause existed."

Third Division Award No. 23015 (Dennis)

"In reviewing the record prepared for this case, it has come to light that carrier failed to supply a copy of the transcript of the June 30, 1978 hearing to the board. While both carrier and the organization have quoted from the transcript in their submission, this board cannot be sure how pertinent or persuasive their quotations might be without the advantage of the transcript. Since, in such cases, carrier bears the burden of proof and since the facts needed to carry that burden are elicited at a hearing, it is important that this board have the transcript of the hearing before it in order to make a proper determination in the case.

"Absent that information, this board has no recourse but to uphold the claim on the basis that carrier has not carried its burden of proof, based on the record it submitted for this board's consideration."

Fourth Division Award No. 2210 (Seidenberg)

"The record contains the Carrier's reasons, and the Organization's defenses and explanations, as to why discipline should be sustained or why it should not, including excerpts from a transcript of the investigative hearing. Both parties make frequent allusions and references to this transcript in support and in defense of their respective positions, but the transcript is not attached to, or made a part of, the Carrier's Submission.

"In light of the established principle that the Carrier has the burden of going forward with the proof in disciplinary actions, the Board has no alternative but to hold that the Carrier has not met its burden of going forward to prove that its disciplinary actions were supported by substantial competent evidence. While it may well be, that by the adducing of proper proof the Carrier's actions might have been justified, nevertheless, this Board is unable to make such a determination in the absence of competent proof. Since the entire transcript, and not parts thereof, provides the matrix of a discipline case, in its absence, the Board must find that the assessed discipline must fall. See First Division Awards Nos. 5555, 11364, 12140, 16955 and 20426."