Form 1 NATIOrAL RAILROAD ADJUsTTE]zrr BOARD Award No. 7972
 SECOND DIVISION Docket No. 7665
 2-IC G-.sTYz-- '79



Parties to Dis-pate:

 ( Illinois Central Gulf Railroad

 D:i.s;oute; Cladxa of I_tm loyes:



















Findings:

 The Second Division of the Adjustment Board, upon the whole record &:nd all the eviaenc e, finds that

 The carrier or carriers and the em-n'loye or employer involved in this dispute are respectively carrier and e_r,_r1o;,re within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jury.sdiction over the disnz-L.e involved herein.
Form 1 Award No. 7972
 page 2 Docket No. 755
 2-ICG-STI- t 79

 Claimant was suspended from service IloveiW er 5, 1976 prior to an investigation heari nn held on dates of November 16 and 17, 1976. Clai manta was charged with having made two to J_.ephone calls to the Z1'oodcrest Shop Superintendent's home, threatening the Sha-o Sup:rwintendent's life. Additionally, Claimant iras also charged vrith threatening the life of fellow worker in a separate but apparently related incident. Claimant ~~ratzatified by letter dated December 1, J_976 and signed bar the hearing officer that he had been found guilty of the charges arid effective as of Dece~rOer 1, 1976 he was dismissed from the service of the Gamier_

 The io:LJ_oYring is a, chronol.o~;-,__account of the factual background. of the instant case. On the afternoon of October 20, 1976 at approxa5as,teay 3:0£3 and 3:40 R.-I, resmect:i_vely, t;.o araorynMeus r'~ione ca7`(_s were received at home by 'i,I~e z·rife of the T:codcrcs't Shay Su_reri ;lvetzden°c in G',nich the caller appr:ised the wife her br..zsband 'c'ras in trouble, that a colz:ur vet, z`T's=.s Ol.1"J an hurl and that he 1;'`"S ^;07.ng to dies Vie Shop cu.'TJ41.'1Y3'tvlldE,'nt',`i Z`T'.:f'e 1r.""._'?ed78;~E'ly notified her husband of the calls end. he in 'X.rn notified t?re Carr;.cr's police and special services depar t::~er?t. On October 23, 7..'>'c-'., the Shop Superintendent' reported to s_Neo~iaa_ cents teen:Eu shortly after noon that c%air another anaial,'nous telephone cw:!1 had been placed to his residence, but treat this t:i_n~ tizere was silence and then the o,):l.:Ler hut,~-~up. On October 29, 1976, Special Agcnt ;,ezrrs'Lack, wr,Parerltl;r as a, resi?3t of his inve:;'tiJ,tion to date, picked up three t~Y:p:)_ayees of tire Cwrr a.or for the ;parpose of haven`; thE= ta.he a pollyga~cIl test concerning tiic` anon;.::ovz;~ -phone eallL to the Shop
 Superintendent's residence. T>'14 CJ.v.1.`.':!ant 'tvd., c"?d::fJnf; these three e-ployees..
 Each of the three employees were given the uol;y-~ra_ph test z^rh:i.ch S`ras adlni.n:istere-L9. at the offices of J. R. Davis Associates, Inc. Of the three employees, tTo were apprised. they passea the test and the ?°o.:naJ .ning en:plcyee, the ClainLant, wa s apprised he had failed the test. The Claimant requested he be re-tested and was so acco:rurodated, though he failed the test a second time. Distraught from the polyCrwph session which lasted between two and three hours, the Claimant upon returnir..g to the ship, requested and za~.s granted a thirty (30) day leave of absence to obtain medical care.
employees who had talzen 'L7-,o polygraph test, in a lounge/bar and allegedly
 pulled a gun on him and threatened the co-worker's life. Testimony fr oru 'the
 record indicates Claimant's motives for doing this was based on a belief by
 Claimant, that his fellow T`ror'^=er -~-,%s to blur..^.e for Claimant having lost his
 job and also causing Claimant's best friend to be dozen on hi.m. On i~lovember
 1, 1976, the co-worrier ,`;hose life had been threatened the night before,
 reported the incident to Sree'i al Agent VTein stoc':_ Special Agent Weinstock
 inwnediately contacted the local police depart:ent and together, the poi.a.ce
 and Special Agent i·leinstocx> proceeded to the Cla'i::_arit's residence where he
 was put under arrest. According to S-peoia? A.-ent T%leinstac~:, at the time
 Claimant -v,-as arrested, CJ_ainant's living ?°oorn contained a shot gun zvrith shells
 an the seat of a chair, newspaper all over t}1^a floor, a pair of scissors
 and several cut out areas i n the ne:;~:~Jaxer and scotch -tabs. At the police
 station, Cla.'uv ant was charged with assault, un1Wri1zJase^ of a wea-
Form l Award No. 7972
 page 3 locket No. 7815
 2-TC G-SNI-' 79

 disorderly conduct. The first two charges arose from the incident at the bar on October 31 , 1976 and the latter charge arose from the two threatening telephone calls of October 20, 1976. After being charged., Claimant vacs subsequerztl_-,I released on bond.

 On 1`Iovc:n'oer 5, 1976, Clai-riunt attempted to report for work at which time he was suspended fro::!. service penrJ.:i tzg a
 uhe sfoxmal investigation. Claimant vas
 dze ·,o ~ i _ce of the CaY..c_;;,:-~.::. 1, 197~ On
 ,nr~isc,~n~d fro__ . ...rv:~r..er _ effective Deco~. _ ~x 0.
 De~eEmber 22, J.-97o, alS thvca char yes sworn the Claimant on Hoveiinber 1,
 J_976 mere di^T:nssed by the Cix'cu:it Court of C:3oI~ County.

 The Ory::?l:ization t.ss'es -the position Cl.asna.nt was unjustly deal, with as Carrier den~.~:. Mir tl2v 4nroteov:ion -~.na benefits, of ~,ul_e 37 a:,s;d 39 r es~ -ctive1y,
 ..?__-~ ryr i n ; t .; ';,~^wa_L l" i;,~%rf_'.f-_iGnt TI l~ Crcan1:::Nt~_oi1
 under the CO::, .~.l.:L.L:L_.~, GO_..i C. ,;a T. L1: , i, n7-n`~ ;, .
 rraintains that such denial of nroi:.cctioa and benefits re:>??J..ted basiCa.l_l-y
 from the fo_L1.o-lo.,hc: charges a:.,'',-i;,~t the CJ_a_._~1~t failcd to include a
 sta.tcilent a.J.luciirkr?, to any x^~l1e or x~?Wes set fo_-th by the collective
 b'd.rg::r,'i rl'i Tl~', agreement ;~h:i cI1 allegedly i7er2 vi C3~_4~:GGC~.; C^,.r)'7. C:'C' acted 'U.21jL;s'Gl`~.
 -when 1t S'L1S"3Y?dEd Cl'..'..=i=..,'1i~ prior !'l.Uld'i 1'ig the '!.T%J.-'_St1_'-:''i.vJi."y hear iTl;';;
 CJ_e:iJ:1S,L1t did not x'ci:.·iVf' d, fair and i1Y'J,r t:i-cvl. }-!ca:.o1r.Lr-; a S C:.:.S.'1Y::ant 4 c,::
 prejL?CinCd by 'C.!:'. hearing 07.'ri.Gr"", C:'a:CiE'.r -arrived at conclusion Cla.:_.':a:r"ii:
 '"' '~r as C:· v'..x'^'nd b ' S d not y on t:,Ym `' :LrE:Ca Y~;1;~...'`~i W7.CiF :'lCe but i a:,tllex' on_
 was 2;~.~tJ < :1 z,. G., c' .ty' ,I. vL'
 a co_o-'.naaicl» o:~,I' as sLi=..W:ias2; coti~ectv,.~.~, specula i,ior? and sv .p:i.eion; and the
 assess2,ient of' dz.se:i.pl:ir!e iaa.s oo:~p leto:L;,r arbitrary.

 Further, the Cry anizatv.on protcs red at tire investigation that since Clair-ant's a.'! leged ac Lions were not Y,r~.o1a rive o:" either. S`r:al1 Super:intend_ent t s rules or of any agrtc.::~cnts betz-reen the Union nsL the Carrier, that the x.~.t;ter
 _ c
 under investic_;:.twora properly belo:ye:~. under the jurisdiction of the la-,?r of.'
 co?zx'ts rather than under the jurisdiction of Unfi_or?s and ra,:L:iroads, The
 Organization asked the Board to twhe ;_;yee-ial note tha;t the C? a:ia::a,nt mas
 cleared of all charges by the Court and the case was thereby dismissed.

 The Carrier maintains that it did not violate either Rule 37 or Fv·,1e 39 of the controlling aJreexnent either ;rhcn it assLix..ed jurisdiction over the matter in que stion nor wh,~n it suspended ClaL,-aaLTt prior to conducting the investigatory hearing. The Carr:i.er contends the Clai.*uant received a fair and impartial hearing and -~ras not 5.n ary way prejudged by the hearing officer. The Carrier talk-es the position that an acquittal in civil court in no way absolves an employee fron, being acevantable to the employer for his conduct in connection ?:ith offenses w.nich the employer deems cxf;rEn:.ely serious. Finally, the C~:.rrs-er holds that the ev:i dentia ry record :is subst anti.al and tint in light of h~wi ng ascertained. C1u.imwnt t s grzilt -i n the instant case, the discipline of dismissal was justified.

 This Board finds the Carrier did not violate either Rule 37 or R,l1e ;39 of the controllir~L-; agreement and tlmreforo, did not act :i:Y~prororly when it a,>mm_ed jur; ^ciietion of the matter in qL?es~ion. It is a genera:Ili;~accepted p:wine'__pl in the field o:f.' labor relations that 2,n ex::x;loyee shat. be held accomitGblc
 Form 1 Award No. 7972
 Page 4 Docket No. 765
 2-IC G-SIU- `7g

 for their conduct during ofd' hours from work and while off company premises if said conduct shall cause to have a negative and detrimental impact on the employer-e~ployee relationship In such cases, ;here off-duty contact becomes an issue, the Company has the right to assume jurisdiction of the matter even though the conduct in question cannot be said to be violative of any specific rule, regulation or clause of either the controlling agrec:;;.ent or any other compacts between the Union and the Company. Farther, the employ:r retains the right to jur i: d:ict_on of such ratters notz;Tithtalids.rl~; the fact that other societal institutions Luoh as courts of law may also 1_egiti:v:;;tV7 claim jav,isdiati.o:2, 1n the instant case, the Board notes that Claimant's civil behavior aV, foam the CGyaYly premises, the :'Object of Z:h iGil is here under scx:.W_py-y, involved both a c<:1.ya:Iy official and another of the. com,
 par:y` s employee,-,. it is clear to this Board from the foregoing discourse that Carrico rightfully assumed jurisdiction of the matter in ~ ciue:viol7.
Claimant prior t0 conducting w11 1Y1v2StZ.r;·:,tUl'S' hearing. 1'i?ere are numerous
 awards of -the 1`LdjuU°;;:nt i[_')Gard zT'n-Lc:h hold t?~sat when th:: alleged e~'~'ense ..__
 a serious Carrier 1 c i ^~i .authority a ,~ one, C1^.~_..,_~x naN .nclvaesti.cned authority to remove the suspected
 employee i'rcm service pending ~ an investigation. ( See First Division :=:sra.s'ds
 20 163, ~16 !s0 6, and :1_g 47`l). indeed, thLlanguage of :;ale 39 of the
 controlling a;w't,'F'·:a?nvy effective li°Gr11 l, 191] and last amended, October
 1969, 15 Cli.'t:_ tE:~ clear .._I1 its meaning and intent rcz;ai'EY: SW.=1 c1u.'i;hC)i.'ity.
 Rule 39 reads in r alc:vant part as follows:




This Board finds that the instant case appropriately falls within the scope of "proper cases" as tol2ec?:ipl,:a,ted by t'ile language Of 'Mule r]~o The Board further finds that Claimant has afforded a fair and impartial hearing and was not prejudged guilty by the hearing officer.
primarily circumstantial in nattt>: e. However, the Board agrees that i t is
 possible in certain instances to compile a substantial record based on
 inferences drawn fr'GYa all of the prevailing circumstances. While proof
 positive does not exist regarding Claimant's in the alleged
 acts, the record nevertheless reflects a pattern of behavior on the part of
 Claimant highly Rues'i,zonapla and beyond mere coincidence. ~~lhile -Lbws Board
 recognizes polyy:.'ap'te results are inadmissible i n a tour':: of law for va.r. ions
 reasons, the Board also notes for the ~rocord, that investigatory l.loarings a.n
 court proceedings are two different foz^,ims. Therefore, even x'ecoGn:i.zing
 the flaws associated vTi.eh polygraph evidence, this Board finds it nust a.ccGrd
 some weight to the polygraph results in the instant ease, Those results
 concluded that the M:i:na,nt was not telling the truth regarding the questions
 COY1CernlnJ the eV''O threatening telephone calls. The Board notes also tha''G
 Claimant -,sted and tr 'r the polygraph test voluntarily and also
 supposedly requested that Claimant eras afforded the opportunity to repeat the test morn than once
 Form 1 Award No. 7972
 page 5 Docket No. 7865

Nrith no different resatl'cs. The Board finds even more damaging, testfli-yror~y by Special Agent Weinstock, concerning the several items or a shot, g-un, gun shells and parts of out-up newsprint observed :in Claimant's living room on the date of his arrest. The Board notes this i;estimo ~ ?'~.s never re:.Lted anywhere in the record. in addition, the Boe.rd notes the potential alibi of Claimant when he realuesteG. a medical leave of thirty (30) days but wLtcLnpted to return to rTork less than one i'Teeh 7_ater, ~':h ~.c.n ?;as also several days a:tter he had been arrested. Clai;:.r:.nt's :-cvex°a'1 bouts af drunken beh-aviox° have also been duly, noted by this Board.

 F1lla:.ll~'', we note tTM'^,t Cla1?:'.aTlt Z':c`zS u,CC!ti_t"Ued in a court of on the
 very same c;har,-es as tizo,c>e being here revieT·Ted, As the Standard of proof used
 7.n court p;·O. in:,~ n i.~ of a JTc. r·v ,i- :'t. ~ wr,1'~- t~ja?o that which :!s c'3,T~-~7:! y
 n..Fr>~.d.. y, ~~ E'w_.,i c1.._l v :1 _C'd n
 lrivestigG,tory heax:ings, we find ":T.a~r~.nt's acquittal not ,.~.:,t-ietLl:~x:L~- per-
 suasive yi%he?? the evidentiary recorv: bE.ioye us. Thus, ?'re rule the evidence
 thot:,h ciros,·,ns%antial I to be sub stwnt~?.a'1 enouzP= to -warrant a denial o= the claim.

    Claim denied,


                          TSATIOT'Y.Tj RAILROAD ADTUSTP~;1~'I' BOA-RD

                          By Order of Second Division


Attest: Executive secretary
 National Railroad Aajust::ont Board

 13 ~ %v~ %~%'~--~~.._.-, ~.r' y.,~- .._ m a d : r ~:_`'._ ~ _
 y ~ _~__ _
    Aoseia.r:i a Br arch -- Administrative Assistant


Dated/at Chicago, Illinois, this lath day of June, 1979.