Form 1 NATI0ML RAILROAD ADJUSTIIENJ' BOARD Award No. 7917
 SECOND DIVISION Docket No. 7612
 2-CR-EW-'79

( System Federation No. 1, Railway Employes'
 ( Department, A. F. of L. - C. T. 0.
 Parties to Dispute: ( (Electrical Workers)
 (
 (Consolidated Rail Corporat?.on

 Dispute: Claim of Fxrployes:













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 employer involved in this dispute are respectively carrier and e,.~nploye m?thin the meaning of the Railway Labor Act as approved dune 21, 1934.

 This Division of the _Adjustment Board has jurisdiction over the dispute involved herein.

The cla?mant was hired by the Carrier in 1coO, became an Electrician in 1963, and was discharged, follaT~ri ng investwgarive hearin-s, in September, 1976. He was discharged on the groi_nds of his :~.twolv;,rnent, together wit.-Ii the employe who was his working partner at the t-it,.ie in clues-U,-ion,' in th--tYieft of several Car?~zer.-owned coils of capPer Noire. The charge which led to the roves ;igative hearings arid the d.iscnaz·t,e i:~ contained in. a. letter dated July ?_6, 1976:

Form l Award No. 7917
 Page 2 Docket No. 7612
 2-cR-DW79
 "copper insulated 00 gauge wire weighing approximately
 1,213 lbs. and disposing of this material for 51+5.85
 to T. A. Predel Company, Inc., Schenectady, New York.
 This wire was taken from a cement block building at
 CP-14, Town of Mohawk, on the Mohawk-I-~udson Division
 of the Consolidated Rail Corporation at approximately
 2 p.m., on Thursday, July 8 and Friday, July 9, 1976."

 It is an unquestioned fact that the coils were reported as missing to the Carrier's Police Department; that the Police Department's investigation showed the coils to have been sold to a junk yard (the Predel Company mentioned in the quoted charge); and that the claimant's co-worker (together with a friend of the co-worker) took the coils to the junk yard and sold them for the particular sum of money.

 The co-worker pleaded guilty, first in court and subsequently with the Carrier in seeking reinstatement on the basis of leniency. His reinstate.W:ent, effort failed (see Second Division Award No. 771+6), and his plea in court resulted in conviction on a reduced charge and the payrnent of a fine (without serving a jail sentence).

 The co-worker's confession scat ement implicates the claimant, asserting joint planning and the collection by the claimant of half the money (the other half assertedly having been shared by the co-worker and his friend, who assertedly led the co-worker to the purchaser of the coils). The claimant's arrest and discharge were substantially based on the co-worker's confession statement.

 The claimant denies involvement in the theft, and the organization's position is that adequate proof against the claimant is lacking. Our review of the record leads to the contrary conclusion:

 - We do not understand how the co-worker derived gain from implicating the claimant. His statement does not seek to shift the blame. It merely shows the co-worker and the claimant as having jointly undertaken the theft.

 - The statement made by the co-T/rorker's friend tracks the co-worker's statement in every significant respect. Fart of the friend's statement is: "Patrick did tell.. me that he had gotten the copper wire with a friend of his named Walt (the claimant's first name) who works with Patrick on the railroad," Once more, we do not see how the mention of the claimant's name, given the confessional nature of the statement, yielded a gain to the accuser,

 - Both the co-worker and the friend identify the truck which the claa~rant was in charge of as the vehicle which eras used to transport the coils away from the Control Point. The claimant admits to having let the co-worker tFw~:E: off with the truck on various occasions, for various private (i.e., non-work) purposes, and for various durations. One is to infer that the co-worker iw,s
 Form 1 Award No. 7917
 Page 3 Docket No. 7612
 2-CP.-E4d-' 79

 on one of such missions on the two days in question. But there is no firm testimony from the claimant as to whether, why, or for how long the co-worker. was gone with the truck on the two days. The claimant's responses on this point seem weak and evasive and to have the earmarks of a cover as to the whereabouts of the truck on the two days.

 - Though the record firmly establishes both that the claimant and the co-worker were jointly assigned on the two days in question (working on Snow Melters at the Control Point) and that the co-worker was at work on the day before no less than the claimant, the claimant sought to create doubts on these scores. We think that this has to be viewed as an effort at obfuscation and thus as being of tell-tale character.

 - Though the co-worker was produced as a witness at one of the claimant's investigative hearings, the claimant and his representative declined to subject him (the co-worker) to cross-examination. The stated reason was that the claimant's attorney had advised to refrain from asking the co-worker any questions while the cla,irnant's court trial saas pending. The claimant had every right so to proceed. But he cannot have it both ways. The meaninE; of the silent posture is that, except for the blanket denial by the claimant that no dividing of the money representing the proceeds from the sale of the coils took place, the co-irorker's statement has been left undisturbed and thus has not been rendered doubtful. The statement incorporates a series of particulars. If lac'_>:i.ng in veracity, they could readily have been exposed as such through scrutinizing questions.

 - The Carrier's submission includes the following footnote: "Claimant appeared in County Court on June 3, 1977 and pled guilty to a reduced charge of Criminal Solicitation, Section 100.00, New York Penal Law, and was fined
 200,00." It is true, as the organization contends, that this information was not available either at the time of the claimant's investigative hearings or when the case left the property. But the Organization neither challenges the accuracy of the information nor submits anything by way of arguing that the claimant made a mere practical decision which should be viewed as being without bearing on the question of his guilt or innocence when it comes to his dismissal from service i~Tith the Carrier. And though we are obviously aware of the rule that Adjust.-Pent Board determinations are to be made on the basis of the record developed at the property, we think it is proper to view the particular piece of information in this instance as tYy,~ mere completion of the at-the-property record and thus as something properly to be considered by us. For the foundation for the piece of information is solidly in the at-the-property record: 1) the charge leading to the claimant's dismissal refers to his arrest, and 2) the police report (which is part of the at-the-property record) includes the statment: "The criminal case against (the claimant) remains pending upon establishment of a date for a
 Preliminary Hearing . "

 It is our considered opinion that these various clues, taken together, add up to the conclusion that the claimant is guilty as charged. We so mold.












                            By Order of Second Division


    Attest: Executive Secretary

    National Railroad Adjustment Board


G'~

    BY .~'~.-e-~~ i

    'semarie Brasch - Administrative Assistant


          Dated (t Chicago, Illinois, this 16th day of Play, lg7g.