Form 1 NATIONAL RAILROAD ADJUSTT~T1T BOARD Award' No. 7962
 SECOND DIVISION Docket No. 7835
 2-ICG-CM-t79



Parties to Dis_Trate: ((Carmen)


Dispute: Claim of M=loyes:

















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 Railz~ray Labor Act as approved June 21, 1931+.

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

Two Claimants were charged vith attempted theft for allegedly removi n> without authorization five (5) "Citation" automatic electric skillets and four (4) "Brother" electric typewriters from a box car (N&~d 5552), in interstate shipment while in F Yard in Mar'kh,--m. Claimants were adjudged guilty as charged follo~.i-ing a formal investigation held on August 18, 19'77 and were notified of same and di~;r_iissed from service of the Carrier in a letter dated August 24, 177.
 Form 1 Award No. 7962
 Page 2 Docket No. 7835

The significant facts associated with the surrounding circvr~stances on date of August 7, 1977 are in dispute. It has been established however, that the Claimants, both car in;,pectors, were on duty working the afternoon shift, beginning 3: );-j PTrI and ending 11:1+5 RM, on date of August 7, 177. At approximately 5:00 PM., August 7, 177, special agent G. J. l~cGeo, ente-red Markham F Yard to check box car iF~&W 5595?. In the course of locating and then approaching said box car by automobile, McGee noticed the presence of a person standing by the doors~-a.y on the op-)osite side of the box car and then observed a person beading over and placing a box on the ground. Concludit:: that he was viewinn a burglary in progress, McGee radioed control and reclu.ested assistance. McGee then exited ha.s automobile and according to McGee, as he did so, he observed a person jumping down from the box car onto the ground.. McGee testified he then noticed two parsons bent down looking under the box car and in his direction. McGee further te;=tified he noted what each of the two persons were iraari_ng and that when the two sub j ccts had looked at him from underneath the box car he was able to see their faces. T~_cC-ee stated he then announced his office and. began, moving in the direction of the subjects and as he did, the subjects turned and fled. McGee related he pursued the two subjects and at one time he got w-i thin twenty-five (25 ) feet of them. . Shortly therea ftar, while in hot pursuit, the two subjects split up, each runnier; in opposite directions, T~cGoe pursued one of the subjects and according to his testimony he was successful ~_n apprehending the subject. About th:T s tine, the back-up off icer McGee had requested arrived on the scene and T:;cGee directed o_':E':icer Borrell to pursue the other subject. Borrell however, was unsuccessful in his atto'npt to locate the other person. McGee then returned to F Y_-rd to view the scene of the burglary and in the course of doing so, McGee -testified he spotted the other subject in the car. puny of two other carmen and t)roceedad to wryest hi:_n. ,,he Ho.-newood, Illinois police were notified of the incident and shortly thereafter, an officer of the Homewood police arrived at the Yard and transported the taro subjects to the police depart:nent. Both subjects were charged by the police with burglary and possession of burglary tools and. were held for bond hearing the follovin~; mornin,gr, August 8, 177, Carrier's shift commander called in investigator Weinstock who interrogated the subjects further at the Homewood Police Department.

 The two subjects apprehended were identified as Lloyd Coleman and John Ealey, Jr., the two Claimants in the instant case. Subsequently, the legal charges brought against the Claimants were dismissed in Court on the basis that there eras insufficient evidence to justify a verdict of guilty.

 The organization contends that neither of the two Claimants are guilty of the burglary 3.n question, though. the Organization acknowledges that a burglary indeed did occur. The Organization takes the position that the Claimants in effect were set-up (framed) by Carrier's special agents as retribution for their having written and co-signed. a letter along with a third ca. man, in i-ahich the three complained:. to their local union that the special agents on the property were threatening there with loss of their jobs, harrassi ng and intimidating; them. This letter was dated February 20, 1976, which preceded. the Claimants' arrest by approximately six months.
 Foam 1 Award No. 792
 page 3 Docket No. 783
 2-zCG-cry-' 79

 The Organization maintains that under the circumstances, as set forth. in the rccard of testimony, it was not possible for special agent McGee to make a positive identification of either Claimant. This the Organization contends is so for two reasons:







The Organization further rotes, the Claimants have advanced an altogether different version of the surrounding c:ircui.ista,nces of t'~ugu.st 7, a_0/71, particularly as they relate to the Clairnawts' wi2er ea;bouts during -the time of the alleged burglary. Therefore, the Or~,-w,tr-l_zation maintains, th<;t since McGee ~r;v,s rot in a pas:i.tion to anllie a positive identification of the svbje;.ts and since there is ~testamony by Caxran Barnes support-_I.ng both Cl F,i:::ants' stories 4.s to their ~,~:nE;reabouts, this sha;vs Clairiants were v7_et-.i,ms of a conspiracy perpetrated by the special agents.

 Notwithstanding the merit of its posit-.,.on however, the organization t,;._~jL!es quite forcefully that the Clai;rants' dis~tssal should be overturned solely on the basis of a procedural error co:rrnitted by the Carrier. It is the Organization's pos~i_tian that the Carrier violated Article V of the National Agreement dated August 21, 1954 as well as the Carx°ier `s own procedural requirermnts as set, forth in Form SC-1 in its handling of the cla,.`im on the property.. Specifically, the 01p
not a me:~iber of the Board of Inquiry which conducted the investigation on
 August 18, 1977, but rather was merely an observer at the hearing. The
 Organization supports this position by noting that the Taster Mechanic at no
 time during the hear-1 _ng participated in any way either by asking questions or
 making any other utterances. In being merely an observer, the Organization
 contends that the T,Iaster Mechanic was the appropriate Carrier official to
 handle tho- appeal a t the first stage level. instead, the Organization
 contends, the T~'a.ster Mechanic refused. to handle the appeal and advised tile
 Organization to submit the appeal to the next highest Carrier officer.

 The Carrier refutes the notion of any conspiratorial action taken against the Claimants and asserts that the evidentiary record is substantial in supporting the finding of guilt on the part of. both Claimants. The Carrier hates for the record that the weight of evidence applied i n court proceed1nn-s and that which i s used in it?vestigatiens conducted by the Carrier is not the same. Thus, even though the legal charf;es of bv.r`,3_ary brought a-as.nst the Claimants ;ere d:i.sm,',.ssed by the Court, the Carrier rr,air3tains the pre por.de:r?nee of the evidence developed at th~e :coniwl hearing of t?ufv,.st lo, 1977, suff's_mier:tiy proved the Claimants guilty of atter.-:pted theft.
 Form l Award No. 7962
 Page 4 Docket No. 7835
 2-ICG-CM-'79

 As to the Organization's position alleging a procedural defect, the Carrier contends this position is not only untenable but also r~rith.out merit. The Carrier argues that it was in complete compliance with the ewcablished claim handling procedure as spelled out in the SC-1 Ii orzn. In support of. this position, the Carrier points to true coyer p~ge of the transcript of the August 18, 1977 investigation and notes that the Master Mechanic is clearly listed as a member of the Board of Inquiry.

 In addressing the procedural issue first, this Board rules that the caster Mechanic eras, :i.n fact, a a..ienber of the Board. of Inquiry rather than a mere cii)server. As such, the Master Mechazri c's response to the Organization's first le%rel_ appeal eras therefore proper and v~.s neither violative of Attic:?_e V of the i',.-^.,tional ll;reement of A.v[;ust 25_, 1.954 nor of Form SC-1.
case on its merits. ttz:di sputer. i s the fact that an attemmted hurt;Zary did
 occur an 1su;Mu,st 7, 1977. Thaiyh ~_egal c'tIarges brought a.a.'mst the Cla_mants
 for possession of bur~flax°y too?_;., and atten:ited burglary were subsequently
 dismissed. by the Court, the hoard. points cut- the well established 1princip'Le
 that the :ta.ndard of - is reqys_red in 7..e~.a1 proceedirii;s is of a greater
 weight than the p-exvondera,nce off.' evidence Js t anda.rd ai-,n7aied at roves tigator;;r
 hearings. TTot,~rithstandi .ng the iact that neither of the two Clainants were
 observed in the actual act of staling, this Board bet i e~; es from a thorough
 review of the record, that more than a re<,ona'ale presumption can be dra.z,ni
 that the Clai?-aawts are guilty, ITom-t too, the seriousness of the
 cr ime, this Board. do- 's note how-ever the existence of certain ,I=_t gating
 circumstances such as: the alleged har;issznent of C1_a:irnwzzts by the sy;ecial
 agents on the property six months prior to their arrest; each Claimant's
 long tenure of service with the Carrier, twenty-six (2u) and twenty-two (22)
 years respectively; us well as the fact that each C?.ai..r;;4,.nt's work record. over
 the years has been good. By ta'..ing these mitigating c--l.rot~r!stances into
 account, we feel that even though the record contains substantial enough
 proof of the Claimants' guilt, dismissal of the Claimants appears to be
 excessive. Therefore, we rule bath Claimants be reinstated -without back pay
 or other benefits.

    Claim disposed of as indicated in the Findings.


                          1`TATIOI~T.Ah RAILRQA D ADJUSTME11T BOARD

                          By Order of Second Division


Attest: Executive Secretary
 tj\ a,tionwl Railroad Adjustment 13oard~

 ~o
 By___.zx, ~ - 7 -2,-
      seznarie Br rich Administrative Ass.*i.stant


Dated at Chicago, Illinois, this 13th day of June, 1979·
 DISSENT CF LABOR h:F,1`,QERS TO A`vvARD NO. 7962 - DOCKET NO. 7835
      The controlling Agreement provides in pertinent part:


          "In discipline cases, if appeal is to be made, the--appeal should be made to the officer shown herein who is immediately superior to the officer who held the investigation - and/or assessed the c1iscip3. ine . "

The General Foreman held the investigation and assessed the discipline. it was his decision that was appealed to the Master Mechanic. The Master Mechanic failed to render a decision on the appeal, alleging he was part of the "Board of Incruiry". At the hearing, the Master mechanic asked no questions, made no comments, nor uttered a single word.
 The Majority in defending the Carrier alleges that the Master Mechanic was part of the "Board of Inquiry", which is a phrase not found in the Agreement. But upon z,klhat did he inquire? He asked no question, nor did he participate in the investigation in any manner. His subordinate rendered the disciplinary decision.
 The Majority, in denying the claim, has added language to the Agreement which is prohibited by the Railway Labor ,pct, ;end misinterpreted the 1 ar_guage it added. The Carrier should have, under Article 'J of the National Agreement, dated August/ 21, 1954, been ordered to allow tlzoy claim as presented which would mak.e Claimants Vha?e for the t?.;>1^ held out of service.
                              DISSENT TO AWARD 7962


For the failure of the Majority to so hold, we must dissent.

                                  E. ?71-eleier - ""-

                                Labor Member