Form 1 NATIONAL RAILROAD ADJUSTMEidT BOARD Award No. 7527
 SECOND DIVISION Docket No. 7449
 2-SLSF-MA-'78



Parties to Dispute:


Dispute: Claim of Employes:












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 a s approved June 2 1 , 193 +.

 This Division of the Adjustment Board has jurisdiction over the dis-pate involved herein.
Form 1 Award No. 7527
 Page 2 Docket No. 7449
 2-sLSF-MA- ' 78

 The Claimant was a machinist with seven years service. He worked the shift from midnight to 8:00 a.m. at carrier's installation at St. Louis, Missouri. On the morning of July 25, 1976, Cla=imant requested. permission at approximately 2:00 a.m. to take his lunch period. At approximately 3:30 a.m. the Foreman searched for him and could not locate him. Thereafter between 3:45 a.m. and 4: 00 a.m., Foreman Murrell received two telephone calls informing him Claimant was in the custody of the local police at Maplewood, Missouri because the vehicle Claimant had been driving contained unauthorized property of the Carrier and a loaded pistol. Accordingly, Claimant was suspended from service pending investigation of alleged violation of Tale:. B, C, H, h and P of the applicable agreement. Those rules provide in pertinent part:



















Thereafter, Claimant received notice of investigation and on July 30, 1976 a hearing was held to investigate such charges and Claimant was represented by the organization's General Chairman. ~'ollowin_ the hearin and based on the conclusions reached, Claimant was dismissed from service.

 The Claimant denied that he did not have permission to leave the property for lunch when he was apprehended. In addition, he explained. the
 Form 1 Award No. 7527
 Page 3 Docket No. 7449
 2-SLSF-P,iA-' 78

 railroad property found in the vehicle he was driving (a van owned by another) involved six boxes of "Frisco scott wipers" and eight to ten rolls of toilet paper. In addition., a locomotive seat was mounted between the driver and passenger. seat. All of this property belonged to the railroad. The Claimant explained that he had intended to drop the wipers and toilet paper at the washroom on the property but had forgotten these items were in the van when he went to lunch. It is undenied that it was his weekly practice to deliver such materials to the washroom. As fox the locomotive seat, Claimant explained he found it in the scrap bin. He had mounted it in the van so his daughter could sit on it. He explained it was his intention to return the seat when the use ended. With respect to the loaded pistol, Claimant maintains he had no knowledge it was in the van. The van belonged to another and tie did not inspect it when he borrowed it.

 The Carrier has the burden of proving by substantial evidence the charges brought against an employee in disciplinary cases. Under the circumstances hero we do not believe that burden has been met. This hoard will not disturb findings of a Carrier :in such cases where there is ample evidence in the record to justifw its conclusions. We do not suggest that Carrier should have believed Claimant's story. Rather, it is our view the seriousness of the charges warrant ;:lore YNersuasive evidence than this record reflects. The Claimant's explan%:tion regarding the seat and the washroom supplies has not been rebutter%, and, insofar as it serves to shift the burden of going forward v-ith the evidence to the Carrier, the latter has not produced sufficient evidence -to support its contention that the railroad proper. ty was stolen. This Claimant typi call,r left the property to secure lunch for himself and others. There is no indication here he manifested any intent to dispose of the washroom supplies in any way other than as he explained. As for the seat, it was recovered from the scrap bin and his use of it in the borrowed van was open and observeable by everyone and we find no indication of a larcenous purpose .

 His explanation reardin,, the loaded pistol has not been rebutted. Insofar as he did not own the: van, and he claims he had no knowledge that it was located in the vehicle, we do not believe this charge is substantiated.

 With respect to the charge that he was absent without permission, we have a different view. The Carrier's witnesses were clear and forthri-ht as to all the circumstances. C1. a:Imant requested permission to go to lunch about 2:00 a.m. '[Tc was told E,e could go depending upon the location of an expected train. When the foreman checked and determined Claimant could go to lunch, he could not locate him. The record reflects he was missing from about 2:30 a.m. until lie called. in around 3:)-r5 a.r:. and thereafter he was apprehended by tile police. C7_r1:11-_ant' s contention that he did not i n fact leave until 3:30 a-m_ is quF:stiona.ble in view of.' the fact he was not available to N;ori~ on the train ~,rhen i t did arrive ,.round 3:20 a.m. and he had no knowled;-re oy :its arrival. Voreov7'er, I;he foreman testif~'.ed n:. went throw,h the shop zrid the parking lot and fie could not "find his van". Under
these c:i rcmmsvances the .. Carrier has proven its case that C.la.iY_:iant wwC N a,bsa:_t.
 without permission and the claim is denied in tii~s connection.
 Form 1 Page 4

 Award No. 7527
 Docket No. 74 49
 2-SLSF-Mi%-' 78
The Organization argues further that the investigation was merely one of "going through the motions" because Carrier's investigation was held by an official who-conducted the hearing, prepared the charges, acted as prosecutor and imposed the punishment. Moreover, such official had prejudged the Clairant. We have reviewed the transcript of the hearing and we cannot conclude Claimant was denied a fadr and impartial investigation. Granted, the Carrier official who signed the notice of investigation, presided at the hearing and sent Claimant the notice of dismissal was the same man. But this alone does not persuade us there was unfairness. Something more must be shown to sustain such a claim and there is no such showing on this record.
has not substantiated all its charges, it dial. establish a violation of dale
 P. That violation does not vrarrant dismissal considering his service and
 prior record. We believe he should be reinstated with seniority unimpaired
 but without back pay or other benefits for tire time he vrus under disr,:~._ssal.
 We would cons', -der it appropr i ate for Carrier to warn this employee that 'tl:i.s
 total conduct placed his ,fob in serious `;eoT~,ardy and his future service
 should be continued :,~_t~i appropriate circumspection to avoid even questionable
 conduct.

 A W A R D

 Findings.

 Claim is sustained in part and denied in part in accordance with the

NATIONAL RAILROAD ADJUSTi,~,~T BOARD

By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 Bv-:~. v ~' ¢ e i f ,f r .. . ... -?"- t .~.,..-- - -
 Ho^enrarie Drascli - ~~arii.n.stra,t:~_ve Assistant

 Dated at Chicago, Illinois, this P nd day of May, 1978.