Form 1 NATIONAL RAILROAD ADJUSTIENT BOARD Award No.
8159
SECOND DIVISION Docket No. 7899
2-B&O-FO-' l'9
The Second Division consisted of the regular members and in
addition Referee Robert A. Franden when award was rendered.
( System Federation No. 4, Railway Employes'
( Department, A. F. of L. - C. 1. 0.
Parties to Dispute: ( (Firemen & Oilers)
( Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
1. That under the current agreement Laborer Maurice Smith was
unjustly held out of service since July lg, 1977 and later
unjustly and arbitrarily dismissed from the Baltimore and
Ohio Railroad Company effective September 7, 1977.
2. That accordingly the Baltimore and Ohio Railroad Company be
ordered to reinstate Maurice Smith
will-1h
seniority unimpaired,
vacation unimpaired, made whole for all health and welfare,
insurance benefits including Railroad Retirement and tinemployment insurance, and arty other benefits he would have earned
had this incident not occurred. In addition we are requesting
Maurice Smith be made whole for all lost wages retroactive to
July 18, 1977 and 12
v
interest be paid on all lost monaes due
to his being unjustly held out of service and later dismissed.
Find in ys
The Second Division of the
Adjustment
Board, upon tine whole record and.
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier arid employe within the meaning of the
Railway Labor Act a.. c 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.
Claimant was dismissed from
the
service of the carrier after an investigation wherein it was determined
that
he was guilty of the theft of material
being transported in Interstate Commerce.
Form 1 Award No.
8159
Page 2 Docket No. 7899
2-B&O-FO-'i'9
At the outset the claimant alleges that he was not afforded a fair and
impartial hearing as required by Rule 9. It is claimed that the hearing
officer's manner of conducting the hearing showed a lack of impartiality on
his part which tainted the hearing. We have reviewed the transcript of the
hearing in light of claimant's allegations but are unable to find support
for said allegations. The conduct of the hearing was fair and impartial in
concurrence with Rule 9.
On the merits the claimant takes the position that the carrier failed to
meet its burden of proof. We have reviewed the record against the standard
this Board has set for the burden of proof, to grit: that sufficient evidence
of probative value be produced to support the charge. The standard is not
"beyond a reasonable doubt" as required in criminal cases.
In the instant case the weight of the evidence is against the claimant.
Not only is the claimant's explanation for his actions questionable but the
testimony of officer Truitt and Mr. Primes give the finding of the hearing
officer a solid ground.
That theft is a serious charge for which dismissal is an appropriate
penalty is axiomatic. We will deny the claim.
A , W A R
,D
Claim denied.
NATIONAL RAILROAD ADJUSTNOf BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
~~--
2i
Dated ~t Chicago, Illinois, this 14th day of November,
1979.
Dated at Chicago, Illinois, this