Form I NATIONAL RAIIROAD ADJUSTMENT BOARD Award No. 9485
 SECOND DIVISION Docket No. 9617
 2-IHB-MA-' 83
 The Second Division consisted of the regular members and in
 addition Referee Barbara W. Doering when award was rendered.
 International Association of Machinists and
 Parties to Dispute: Aerospace Workers

Dispute: Claim of Employes:




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 aid employe within the meaning of the Railway Tabor Act as approved June 21, 1934.

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

This is a discipline case involving the dismissal of a machinist helper with one year of service, after he was charged with being away from his assigned work area without permission and breaking into locker #107 in the locker room.

 Petitioner argues that the Carrier failed to substantiate its charges with any evidence of a probative manner. The foreman admitted it was not common practice for employes to get his permission to go to the locker room. Claimant asserted that he went there in search of tools and that he had a key for locker #107 but that it was bent and didn't fit, so he was attempting to pry it open. Petitioner notes that Claimant was not charged with damaging the locker and indeed the foreman admitted it was not damaged. Since Claimant had a key, Petitioner argues he must have had the owner's permission to open the locker and therefore his attempt to pry it open did not involve any wrong-doing.

 The Carrier points out that Claimant's assertions both as to motive and possession of a key were not offered until the investigatory hearing. His claim that he was looking for tools is in direct conflict with his statement to foreman
 Form 1 Awar' No. 9485
 Page 2 Docket No. 9617
 2- IHB-MA-' 83
Kozup when he was apprehended. At that point he told Kozup: "Frazier always has Iwo
 ---- books in his locker." Kozup's testimony on this point was not refuted nor
 even specifically denied. Moreover, when Kozup asked him if it was his locker,
 he didn't say anything about having a key, but merely said "No." Nor did he
 protest that he had a key (or the owner's permission) when Kozup told him he was
 sending him home pending investigation.
 While it is true that Claimant had not completely broken into the locker or
 damaged it or yet taken anything, the Carrier argues that he was admittedly in
 the process of breaking into another employe's locker and that activity alone
 with his absence from his assigned work area for such a reason is a flagrant
 offense. The Carrier argues that although it was not normally necessary to get
 permission to go to the locker room to clean up or use the rest room, this practice
 would not extend to going to the locker room for improper purposes when employes
 are supposed to be working.
 The Board finds that the transcript of the investigation contains substantial
 evidence to support the conclusion that Claimant was guilty of the charges.
 Petitioner's argument as to burden of proof is not compelling where Claimant's
 assertions as to innocent motive and owner's permission were not made at the time
 of the incident. Had he made these claims when Yozup found him, we would agree
 with Petitioner that it would have been the Carrier's burden to produce evidence
 to the contrary. Since these assertions were first made at the investigatory
 hearing, however, it fell to claimant to substantiate them. That is, even though
 management bears the burden of proof in disciplinary cases, explanations not
offered at the time of the incident and unknown to the Carrier prior to the
 investigatory hearing reasonably require greater substantiation by claimant than
 the same explanation offered on the spot.
 In view of the fact that Claimant's assertion that he went to the locker
 room in search of tools was inconsistent with his own on-the-spot statement, and
 that his assertion that he had a key and therefore permission to open locker #107
 was unsupported by any corroborating testimony, the Board does not find that the
 Carrier acted arbitrarily or capriciously in rejecting these excuses. In view of
 the seriousness of the offense and the evidence establishing Claimant's guilt,
 we do not find that the penalty of dismissal was excessive or arbitrary.
 A W A R D




B
 y r
 semarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 11th day of May, 1983. -