this Division for determination. Claimant asks that the "Warning" be expunged from his record because he contends that he was not given a fair and impartial hearing, that the action taken by the Carrier was arbitrary and capricious and that the evidence in the record failed to establish guilt beyond a reasonable doubt as required by the Rules of the Agreement.

Rule 49 of the Agreement provides in part that "A conductor who has served his period of probationary employment (Claimant herein had done so) shall not be disciplined . . without a fair and impartial hearing . .". It also provides that "a decision to discipline shall be made only upon evidence in the record which establishes guilt beyond a reasonable doubt.

These Rules were written into the Agreement by the parties for the protection of the accused. The Rule requiring proof beyond a reasonable doubt has the effect of shielding the accused with the protective cloak of presumed innocence, which remains with him throughout the entire proceeding, and places upon the Carrier the burden of producing for the record, that high degree of proof required by the Rule.

In view of Claimant's contentions and his denial of the charge, it becomes our duty to make a careful examination of the record for the purpose of determining whether or not Claimant was accorded a fair and impartial hearing and whether the evidence in the record establishes guilt beyond a reasonable doubt as provided in the Rules.

Carrier's decision to discipline Claimant in the present case was based entirely upon the letters written by Mr. Green and Mr. Calvert, who, although they could not be required to attend the hearing and submit to cross examination, refused to attend, even though prior to the hearing the General Chairman of Claimant's organization requested and urged them to be present so that all of the facts could be fully developed. Claimant also requested the Carrier to request Mr. Green and Mr. Calvert to be present, but Carrier refused to do so on the grounds that the Rules did not require it to make such a request.

Implicit in the charge against Claimant are the following propositions: 1, that Claimant was the person referred to in Mr. Green's letter as "the Pullman conductor"; 2, that only one person was involved in the incident and that Claimant was that person; 3, that it was Claimant who returned the tickets, and it was Claimant who advised the passengers to make the fraudulent applications. It is obvious from the foregoing that it could not have been Claimant who gave the passengers the fraudulent advice unless it was he who returned the railroad tickets to them in the first place.

The railroad tickets referred to in the letters and in the charge were extra coupon tickets covering "one-way" railroad transportation from Chicago to Birmingham, which the ticket seller had issued in error and which he had erroneously attached to the passengers' valid coupon tickets, covering their railroad transportation for the round trip, Chicago to Birmingham. It was established at the hearing that the extra tickets had no monetary value.

On their return trip to Chicago, Mr. Green and his two associates left Birmingham on January 28 on a train known as the "Hummingbird". The first leg of their north-bound trip was from Birmingham to Nashville. The Pullman conductor on the "Hummingbird" picked up their railroad tickets

soon after they left Birmingham and turned them over to the railroad conductor. Claimant was not on that train.

On January 28 and for eight months prior thereto, Claimant was and had been the regularly assigned Pullman conductor on a train known as the "Georgian," which ran from Atlanta to Chicago, via Nashville and Evansville, and return. Claimant was the Pullman conductor on the "Georgian" on January 28, which left Atlanta on its north-bound trip to Chicago. On arrival at Nashville, a number of cars from the "Hummingbird," including the Pullman cars on which Mr. Green and his associates occupied space, were removed from that train and attached to the "Georgian," which then continued north to Chicago via Evansville. From Evansville to Chicago, the train was operated by the Chicago and Eastern Illinois Railroad Company.

The evidence of record clearly establishes the fact that railroad transportation on the "Georgian" going north from Atlanta to Chicago was never handled by the Pullman conductor; that on the north-bound trip it was always handled by the railroad conductor in charge; that he collected the railroad tickets from the passengers and returned all railroad tickets to the passengers on the "Georgian" north-bound trip.

The record shows that all railroad tickets collected or received by the railroad conductor out of Birmingham were by him turned over to the next connecting railroad conductor, and that all rail tickets previously collected were turned over to Mr. C. C. Walters, the Chicago and Eastern Illinois Railroad Conductor, who was in charge of the train from Evansville to Chicago.

The record contains a sworn statement signed by Mr. Walters in which he states that he "has no knowledge of giving Cond. Freeman any tickets to give back to passengers especially Blank tickets."

There is no competent evidence in the record to show that any railroad tickets were in Claimant's possession at any time during the trip in question.

We have concluded that the evidence in the record failed to establish Claimant's guilt beyond a reasonable doubt, and that Carrier's action in disciplining Claimant was therefore a violation of Rule 49 (i) of the Agreement. The claim should therefore be sustained and the "Warning" assessed against Claimant's record should be expunged therefrom.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21,1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the Agreement was violated.

AWARD