"RULE 6-A-1

(a) Employes will not be suspended nor dismissed from service without a fair and impartial trial.

(b) When a major offense has been committed an employe suspected by the Management to be guilty thereof may, after the occurrence of the offense, be held out of service pending trial and decision."

"RULE 6-D-1

(a) If discipline is to be imposed following trial and decision, the employe to be disciplined will be given written notice thereof at least ten days prior to the date on which the discipline is to become effective, except that in cases involving major offenses discipline may be made effective at any time after decision without advance notice.

(b) If the discipline to be applied is suspension, the time the employe is held out of service prior to the serving of the notice of discipline shall be applied against the period of suspension."

"RULE 7-A-1

(d) When an employe is held out of service in connection with a major offense pending trial and decision, and the decision exonerates the employe so held out of service, the employe will be compensated for the difference between the amount earned while out of service or while otherwise employed and the amount he would have earned had he not been held out of service."

THE ISSUES

1) Whether or not the Claimant was guilty of the offense with which charged;

2) Whether or not he had a fair and impartial trial; and

3) Whether or not his record should be cleared and he be compensated for all wage loss sustained as provided in the applicable rule-Rule 7-A-1(d).

occurred on the 2nd and 3rd of May, however, on May 4th the Carrier's Police Captain dusted the inside of each coin box with an invisible fluorescent powder. On May 7th, several officials of the Carrier opened said boxes and found a total of $5.20 short of the registered amount. Thereafter, all but three employes having possible access to the pay-toilet coin boxes were examined by placing their hands under a ultra violet lamp. The only employe showing traces of the powder on his hands was the Claimant and no further effort was made to check the hands of the three remaining employes.

The Organization argues that the Carrier conducted its investigation in a somewhat careless manner, suggesting among other things, that the Police Captain was not qualified to use the fluorescent powder; that the keys to the coin boxes should have been examined under the lamp; and, that the three employes not tested should have been.

We have carefully reviewed the transcript of the record and are satisfied that such assertions by the Organization are without merit. Insofar as the three employes who were not tested, the record discloses that none of them would have had access to the keys to the coin boxes at any time during the period in question. The decision to make the powder test was reached after the original theft on May 1st and the propitious time selected was over a weekend when there would be no check of the coin boxes until Monday, May 7tb.

The contention that the Claimant was found guilty on the basis of the testimony of one person is without foundation in fact. No charges were placed against the Claimant until after the coin boxes had been examined by several officials of the Carrier and the shortage recorded. Only after the lamp test disclosed traces of powder on the Claimant's hands, was he charged with the offense.

Although the Claimant denies that he is guilty of the charge against him and offered to submit to a lie detector test, the record contains substantial evidence in support of the action taken by the Carrier. The mere fact that the evidence is circumstantial, makes it no less convincing and the Board cannot say as a matter of law that the Carrier was not justified in reaching its conclusion following the trial. (Awards 4808, 6536 and 7657.)

It is also contended by the Organization, that the Claimant was not afforded a fair trial because all of the questions and statements of the Carrier's witnesses indicated a prior presumption of his guilt. This contention is refuted by the Claimant's own statements at the trial. Moreover, the Claimant took no exceptions to questions asked of him and waived his right to be represented. We find that the Claimant had a full, fair and impartial trial and that there is nothing in the record to substantiate a charge or sustain a finding of arbitrary or capricious action on the part of the Carrier.

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 the Agreement was not violated.

AWARD