F oxm 1 NATIONAL RAILROAD AD.IUST=IT BOARD Award No. 7918


    The Second Division consisted of the regular members and in addition Referee Arthur T. Van Wart when award was rendered.


                ( International Association of Machinists

                ( and Aerospace Workers

Patties to Dispute:

                (

                ( Alton and Southern Railway Company


Dispute: Claim of Employer:

        1. That under the textns of the Agreement, Machinist William Baechle was unjustly suspended from the service of. The Alton and Southern Railway Company on the date of Duly 1, 1976, pending investigation. Investigation was completed on the date of P.uo.zst 18, 1976, en the date of Aug-ast 20, 1976, he was notified that re was dismissed from the service of The Alton and Southern Railway Company as of August 20, 1976.


        2. That accordingly, The Alton and Southern Railway Company b e ordered to compensate Machinist William Baechle in the amount of eight (8) hours at the .pro rata rate fox each day of his work week assignment beginning on the date of July 1, 1976, with 6~`/0 annual interest.


        3. And, Further, that he be restored to services, with all rights unimpaired, health and welfare benefits restored and paid for during the time he is held' out of service and all seniority and vacation rights restored. as if he had continued in the employment of The Alton and Southern Railway Company.


f 3. ndi nZs
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

    The carrier or carriers and the employe ox employer involved in this

                                  ,

dispute axe respectively carrier and employe w-ithin the meaning of the Railway Labor Act as approved June 21, 1.93%x-.

 This Division of the Adjustment Board has jurisdiction over the disput: involved herein.

    Parties to said dispute waived right of appearance at hearing thereon.

Form 1 Award No. 7918
 Page 2 Docket No. 7622
 2-A&S-MA-'79

 Claimant, a machinist with almost fourteen years service as of June 30, 1976, was regularly assigned and working on the third shift, L1:00 FM to 7:00 AM at Carrier's East St, Louis Mechanical facility. His primary responsibility was the inspection and maintenance of diesel locomotives at Carrier's Roundhouse.

 Carrier's Chief Special Agent, about 11:30 PM on June 30, 1976, observed two persons, later determined to be employees, removing merchandise which had spilled out of a trailer and onto the flat car on which the trailer was loaded. One of such employees was observed to have placed a carton of merchandise in the trunk of his automobile, close the trunk and then drive away from the location of the trailer and flat car. Another Special Agent intercepted this car and in the presence of various police and Traimaster had the driver identify himself and open the trunk of his car. Therein a box taken from Trawler TaOLU 290988 was found and contained three portable barbeque grills or hibachis. The police thereafter went to the employees locker room at the Roundhouse and placed same under railroad police charge.

 The employees whose car had been intercepted was identified as Mr. Lugene Stanford, a sheet metal worker. He made and signed a written statement,, in the presence of zaitnesses, which iz:rolicated therein several other employees. One of such employees named was the Claimant Machinist, W. Baech7..e. Mr. Stanford attested that he saw Claxxnant, among several other employees who came into the lunch room with tyro boxes of charcoal burners. According to him, they allegedly stated that such boxes carne from a flat car with trailer. These employees carried said boxes into the locker room.

 The police conducted an inspection of the locker room during which a total of seven (7) more hibachis were found. Although Claimant's locker was searched, no hibachis were found therein.

 Notice of a formal investigation was given to Claimant and another Machinist, the Sheet Metal Worker, Mr. Stanford, a Caboose Supply Man, and a Car Foreman,, advising therein that the purpose thereof was:

        "To develop the facts and place your responsibility, if any in connection with the removal of merchandise from container No. MOLU 290988 on Car TTAX g`14353 located on the Rip Runner Track directly adjacent to Mechanical Building Lunch Room at or about 11:50 PM, June 30, 1g76."


The investigation scheduled fox' July 7, was postponed and held on July 11+, 1976. The investigation was continued until August 11th was again postponed and finally concluded on August 17, 1876.

    Thereafter, Claimant was advised under date of August 20, 1976:


        "The investigation developed through a signed scat event from an employee present that you were seen going into the lunch room with a box of merchandise that had been removed froze Container No, rzoUr 2gog88.

Form 1 Award No. 7918
 Page 3 Docket No, 7622
 2 A&S-MA-'7g
 "Your personal record is, effective this date, assessed
 with dismissal for the above reasons,"

 The Board finds that Claimant was accorded the procedural benefits prescribed in Rule lg of the Agreement. It has been so well established as to not here heed citation of authority therefor that an investigation is not a proceeding which is conducted with the same requirements that govern a court proceeding. There is no contractual requirement that the Carrier need furnish Claimant, or his Representative copy of the primary evidence which zrill be used against Claimant prior to the holding of an investigation. Notwithstanding, Claima.nt'~s Representative did receive a copy of Sheet I~ietal Worker Stanford's statement prior to the hearing.

 The objection as to the use of notes by several Carrier witnesses which had not been furnished in advance to the Claimant's Representative must likewise fall. In fact, the procedural objections ra~i_sed are but pinpoints with do significance. We are guided by this Board's Award 6806 (Eischen) which held:

        "It should be well understood that our Board does not .., considered matters not raised and properly joined in handling on the property."


Claimant was duly notified. He had been advised of the nature and substance of the incident under investigation and had thereby been placed on notice. Claimant had a Representative, and, in fact, personally participated in the investigation by questioning the witnesses, answering questions, and making statements.

 The Board will not resolve conflicts in testymony of -witnesses for 'chat is a function reserved to the trier of the facts. Sufficient evidence, albeit circimnstantial was adduced to support Carrier's conclusion as to Claimant's guilt. The Sheet Metal Worker, Mr. Stanford., incrJ=iinated Claimant as well as another Machinist. The police found three hibachis in the other Machinist's locker. The absence of the hibachi from Claimant's locker didn't lessen the strength of such incriminating statement. The record is absent rationale as to why Claimant eras so a.yplicated. Sheet Metal Worker Stanford's efforts to recant his previously -witnessed incrizr_a.nating statement does not serve to make such statement invalid. The record speaks contrary to his misguided. efforts. We therefore find substantial evidence of record supporting Carrier's finding that Claimant had responsibility in this case.

 The nature of the offense couynitted is such that assessing dismissal. as discipline therefor is warranted. The theft or participation in the theft by receipt of stolen goods which had been entrusted to Carrier serves to weaken the stability of a Company, It attacks the foundation of the employer-customer relationship which i s based on shipper confidence while concurrently violating a fundamental bas-1-3 of the employer-employee relation, ship, to wit - honesty. We are not disposed to in~f,erfere with the discipline
 Form 1 Page

 Award No. 7918
 Docket No. 7622
 2-A&S-NA-' 79

 assessed. However, the Fourth Division, in its Award No. 3566 which involved the case of the Car Foreman who had witnessed the theft, and turned his back thereon but who had requested two hibachis, was reinstated to service without back pay. We, too, 9_n such circumstance, will reinstate Claiarant to service with all rights unimpaired, but without any pay for time out of service subject to his passim the usual and necessary return to service examinations.

 The other aspects contained in the Statement of Claim are denied on the basis that there is no supporting Agreement provisions thareforQ Such clai:rs do not arise under the Agreement and therefore the Board is precluded from having authority to pass thereon.

 A Gd A R D

 Claim disposed of as per findings.

 Attest: Executive S~c.retary
 National Railroad Adjustment Board

NATIONAT~ RAILROAD ADJUSTT~1EN'L' BOARD

By Order of Second Division


---~ sexiarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 16th day of May, lg7go