Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10441
SECOND DIVISION Docket No. 10476
2-MNCR-EW-185
The Second Division consisted of the regular members and in
addition Referee T. Page Sharp when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Metro-North Commuter Railroad Company
(Consolidated Rail Corporation)
Dispute: Claim of Employes:
1. That under the current Agreement the Consolidated Rail Corporation
(Conrail) unjustly dismissed Electrician Lindsey L. Mintz from service
effective October 29, 1982.
2. That accordingly, the Metro-North Commuter Railroad Company be ordered
to restore Electrician Linsey L. Mintz to service with seniority unimpaired
and with all pay due him from the first day he was held out of service
until the day he is returned to service, at the applicable Electrician"s
rate of pay for each day he has been improperly held from service; and
with all benefits due him under the group hospital and life insurance
policies for the aforementioned period; and all railroad retirement
benefits due him, including unemployment and sickness benefits for the
aforementioned period; and all vacation and holiday benefits due him
under the current vacation and holiday agreements for the aforementioned
period; and all other benefits that would normally have accrued to him
had he been working in the aforementioned period in order to make him
whole; and expunge his record.
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 disputes
are respectively carrier and employes within the meaning of the Railway Labor Act:
as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Claimant, Lindsey L. Mintz, was an Electrician in the employ of Carrier on
August 31, 1982, when events on that day led to an investigation into his conduct:
in which he was charged with:
Unauthorized possession of railroad property (railroad
ties) on 8/31/82 at approximately 2:15 p.m. at 138
Spring Valley Street, Beacon, New York.
As a result of the evidence adduced at the investigation, the Investigating Officer
found that the charges against Claimant had been proved and, as a,result thereof,,
dismissed Claimant from the service of Carrier.
Form 1 Award
No.
10441
Page 2 Docket
No.
10476
2-MNCR-EW-185
Acting upon an anonymous tip, Carrier police proceeded to the house of Claimant
and discovered that his yard was terraced with railroad ties. Some of the ties
had markings "M" on them and some others had °CR° on them. Testimony established
that these markings either referred to Conrail or Metropolitan Region, a division
of Conrail. Based on this discovery, the Police waited for Claimant to return
home, confronted him with the evidence, and made out a report which led to the
charges being brought.
At the investigation a Carrier Policeman, who had been at the house, testified
that Claimant had stated that he had purchased the ties from someone. The Policeman
stated that he had not been told the name of the seller. Apparently that name
had been furnished to the Police Captain who had been at the house but was not at
the investigation. Later testimony established that the seller had been an employee
of Conrail.
When asked if the ties belonged to the Carrier, the Police witness answered'
in the affirmative. He said:
"Q. Sgt. Ginard, have these ties been identified as
Carrier's property?
A. Yes, they have been."
Claimant presented two witnesses, one a Foreman of the Carrier, who testified
that they had been at the residence of Claimant, some one year before, at the
time that he purchased the ties from the other employee. The name of the employee,
according to these witnesses, was the same as that named by the Claimant.
Thus, several things were undisputed. The Claimant purchased the ties from
a fellow employee, identified by numerous witnesses, and this name was furnished!
the Captain of Police. The ties were removed from the property of Claimant.
Claimant is not charged with theft. As the charge stands he is literally
charged with nothing. Possession of Carrier property, even if it was stolen, is;
not, in itself, a crime. By analogy to law, stolen property cannot be conveyed
with clear title and the rightful owner can reclaim his property, but the
purchaser is not necessarily guilty of any wrongdoing. The situation is different
if the purchaser knowingly purchases stolen property.
Although not carefully articulated, the Board perceives that the discipline?
meted out is on the grounds that the Claimant knew or should have known that the?
property was property of the Carrier. Such a finding could justify some degree
of discipline. However, there is no proof that Claimant knew that the property
was Carrier property. An inference can be made that because some of the ties had
the Carrier markings on them Claimant should have known that they were property
of Carrier. Such an inference is not justified because of the fact that there
was no proof that the ties were property of the Carrier or that Carrier was
missing any property that belonged to it. The limited testimony, quoted above,
concerning ownership is not only hearsay, it is hearsay without any factual
underpinnings. The Police witness was certainly not in a position to testify
that there were ties missing from the former year from the inventory of Carrier..
The Board takes judicial notice that ties and other railroad property are sold at
various times by all Carriers.
Form 1
Page 3
Award No. 10441
Docket No. 10476
The Carrier has not proved its case. It had the name of the person stated
to have sold the ties to Claimant, but nowhere is there any evidence that it made
any attempt to involve him in the investigation to ascertain if he had legitimately
or otherwise acquired these ties. It should have had sufficient knowledge of its;
own affairs to introduce evidence into the record that established in the proper
time frame of missing ties. In short, the Carrier assumed that because Claimant
had ties that were allegedly its property, he was guilty of knowingly acquiring
this wrongfully appropriated property.
While investigations do not demand the same standard of proof as that necessary
in a criminal trial, they demand more proof than was presented here. Given the
record of this case, the Board finds that the charges, liberally construed in
favor of the Carrier, were not proved.
The charges were not proven.
Claim sustained.
Attest:
t ~;'
~... ~-
icy J.
A W A R D
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this
Executive Secretary
5th day of June 1985.