. ',
Fo)ai 1 NA.TTOMIL RAILROAD ADJUSTMENT BOARD Award No. 73+6 i
' SECOND DIVISION Docket No.
7766
2-A&S-CM-179
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
( System Federation No. 2., Railway Employes' i
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Alton and Southern Railway Company
Dispute: Claim of EmEloyes:
1. That under the current agreement, Carmen W. J. Younger and J.
Horvath were improperly dismissed as Carmen on February
9., 197.
2. That accordingly; the Carrier be ordered to restore Carmen W. J.
Younger and J. Horvath to service with all rights unimpaired and I
compensated for all time lost including payment of all fringe t
benefits with six (6) percent interest on wages. .
3. That Carrier violated the procedural .provisions of Article Y of
the National Agreement dated August 27.,
1954,
when letters dated
April 22nd and 29th, directed to Mr.Emmett D. Cox., Local Chairman
i
from Mr. D. K.Medley, Superintendent, The Acton and Southern
Railway Company., failed to be complete or concise by not setting
forth in writing forth in writing the reason for declining the
claim:
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 jurisdiction over the dispute
involved herein
Parties to said dispute waived right of appearance at hearing thereon.
Claimants were dismissed from service on March 9, 1977 following an
investigation herd on March 3, 1977, wherein they were charged with, "your
alleged participation in the theft of seven bars of copper on Alton and
Southern Railway Company property at approximately 10:50 P.M., February
9,
1977
and on the part of Cayman Younger his alleged attempt to inflict !
bodily harm
on
an Alton and Southern Railway Police Officer."
i
Form l Award No. 7846
~ '
l
Page 2 Docket No.
7766
2-A&S-CM-'
79
Claimants argue that they were not ,proviued with a precise statement
of the charges and specifications or a fair and impartial hearing as
required by Agreement Rule
19.
They contend that these due process violations
resulted in unjust dismissals, which were=further predicated upon the
E
admissibility of dubious testimonial evidence. They, additionally, assert
that Carrier violated the procedural lr ovisions of Article V of the National
Agreement, dated, August 21,
1954,
when Carrier failed to articulate in
writing, its reasons fox declining the claim.
Our review of the record indicates a contrary conclusion, namely, that '
Claimants were afforded a fair and impartial hearing, that was consistent
with the requirements set forth in Rule 19 and the definitional due process
standards of the Second Division. i
t
We also finds moreover, that Carrier complied with the provisions of i
Article V of the National Agreement. When Superintendent Medley wrote to
Local Chairman Cox.on April
29, 1977
(which was within sixty (60) days
from date of the claim letter dated April
13, 1977),
he fulfilled the
requirements of Article V.
i
Claimants were charged with a very serious infraction that is absolutely ;,/
prohibited in any employment relationship. Theft, in arty form or amount,
is a dismissable offense. In the instant case, we have, as to be expected, '
conflicting versions of the specific fact occurrences on February
9, 1977.
The Chief Special Agent testified that he saw the Claimants load the
copper bars into the trunk of Carman Younger's automobile and that he was
subsequently struck by this carp when he attempted to intercept it. The
Claimants denied it. j
The precise configuration of events, however, provide a detailed
cause-effect mosaic that, although, reflect the presence of circumstantial
developments,-nevertheless, substantially confirm the allegations. The
Chief Special Agent and the Assistan;, Mechanical Superintendent testified j
that they saw the seven copper bars in the Carmen's
shanty
before the j
claimants arrived there that night. The former official, stated, that he
later saw the claimants load the copper bars into the trunk of the car.
One of the copper bars was located in this vehicle, after the claimants
were apprehended.
I
There was no contradiction or effective refutation of the Chief Special
Agent's charges that he was struck by the vehicle while trying to stop it.
Form 1
Page
3
Award No.
786
Docket
no. 7766
2 A&S-CM-'79
When the collateral or circumstantial happenings are directly linked
to the direct evidence such as here, with no apparent ox presumptive
inconsistencies, we find more than sufficient evidence to substantiate
the charges, We will not belabor the application or efficacy of the circumstantial evidence rule, except to note the pertinence of Third Division
Award 12491., where Referee Ives eloquently eoncepturalized its application:
"The mere fact that the evidence is circumstantial, makes
it no less convincing and the Board cannot say as a matter
of law that the carrier was not justified in reaching its
conclusion following the trial."
We will deny the claim.
Claim denied.
A WA R D
NATIONAL RAILROAD ADtJUSTNIENT BOARD
By Order of Second. Division
Attest: Executive Secretary
National Railroad Adjustment Board
By ~/
~o emarie Brasch - Adminitrative Assistant
Dated t Chicago, Illinois, this 14th day of February,
1979.