noz~n
1 NATIONAL RAILROAD ADJUSTMENT BOARD Award I~jo. 6983
SFCO'1VD DIVISION Docket No. 6872
2-SP(PL)-MA-'76
The Second Division consisted of the regular members and in
addition Referee Walter C. Wallace when award was rendered.
( International Association of Machinists
( and Aerospace Workers
Parties to Dispute:
( Southern Pacific Transportation Company
( (Pacific Lines)
Dispute: Claim of Employes:
1. That under the current Agreement the Carrier improperly suspended
on March
5, 1974,
and subsequently dismissed Machinist A. V.
Gutierrez (herein after referred to as Claimant) from service on
March
15, 1974.
2. That, accordingly, Carrier be ordered to restore Claimant to
service with seniority and service rights unimpaired, including
vacation and insurance benefits and with compensation for all
time lost from date of dismissal to date of restoration to
service.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employe -within the meaning of the
Railway Labor Act as approved June 21,
1934.
This Division of the Adjustment Board has 'urisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was accused of stealing journal brass that belonged to his
employer, Southern Pacific Transportation Company. There is in the record
substantial evidence to the: effect that Claimant admitted the theft and
admitted the brass belonged. to Southern Pacific Transportation Company.
This admission is neither attacked, contradicted nor explained and it
necessarily supports the Carrier's case. The fact that Claimant chose not
to make any statement in the hearing does not constitute a denial of
fairness. He did so on advice of counsel and he did so ?voluntarily.
F aim l
Page 2
Award No. 6953
Docket No.
6872
2-SP(PL) -MA-'
76
There is no basis for the claim that an investigation of a rule
violation must await a pending criminal proceeding for the same offense.
There are ample awards in support
of
the view that these are separate and
independent matters and there is no necessary reason to link one to the
other. See Second Division Award, Referee David Dolnick, No.
6619.
We reached this conclusion without reference to Carrier's Exhibit "C".
There are indications in the record to the effect that this exhibit includes
admissions by the Claimant. For example, see Carrier's Rebuttal Page
3.
A
careful review of the three documents purporting to be Exhibit "C" does not
confirm this. Whatever purpose this exhibit was intended to serve, its
submission did not prejudice Claimant in any way because Carrier's decision
was supported in the record without reference to this exhibit.
A
TW
A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
BY
o emarie Brasch - Adriinistrative Assistant
Dated t Chicago, Illinois., this 13th day of January, 1976.