(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (Kansas City Terminal Railway Company

(1) The Carrier violated the Agreement when it improperly withheld Mail Department Employee, Mr. D. C. Poole, from service for an indefinite time following an investigation on charges that were not precise, and not proven.

 (2) Claimant was withheld from service as a result of decision that was vague and same as "no de
(3) The "Pseudo" decision of indefinite suspension was based upon pre-judgement of guilt, therefore arbitrary and an abuse of power.

clear his record and pay him for all time lost from the date he was suspended from service (January 14, 1972) to the date the Carrier withdrew the suspension restoring him to duty, less time actually unavailable due to physical disability.






A formal investigatory hearing was held on February 4, 1972 and Claimant received the following letter dated February 17, 1972:














Petitioner first argues that the charge quoted above was not precise and thus did not conform to the requirements of Rule 20, since the nature of the alleged violations of Rules E, L, and M were not disclosed. Carrier repeatedly arg by the Board since it was not timely raised at the investigation. Carrier is obviously in error, it is properly before us. The issue will be considered in the context of the entire investigation.


            Carrier received notice dated August 18, 1972, from the Clerk of the Circuit Court, that the-robbery charge against Claimant had been dismissed. Due in large part to Claimant's being ill, he was reinstated on October 1, 1972, but without back pay. He resigned from employment on October 12,


            Petitioner's arguments may be summarized as follows: the charge was not precise; Carrier failed to sustain its burden of proof at the investigation; Carrier's decision was based on the newspaper story and the presumption of Claimant's guilt of the robbery charge; and finally the decision was indeterminate and in violation of Rule 19 of the Agreement which provides that decisions must be rendered within fifteen days.


            Carrier argues, inter alia, that the investigation contained substantial evidence to support the conclusion of guilt and the outcome of the criminal court proceedings is not determinative in cases of this type. Carrier further states that the decision was not indeterminate but ended automatically when the criminal charges were finally determined. We certainly concur in th is not a bar to disciplinary action by the Carrier, and is in fact irrelevant; this position has been expressed in many Awards (Awards 13116, 12322, 15577 among others). Carrier emphasizes its needs to protect the public, its employes and its property and cites the severity of the criminal charge as a proper basis for its conclusion to suspend Claimant. Carrier cites a prior related factual situation on its property and Awards (Award 18536 an the right to hold Claimant out of service pending completion of the criminal proceeding. We note that in the situations cited there was either a postponement or rescheduling of the investigation pending the outcome of the court case; this was not so in this matter, since the investigation was completed and a finding of guilt reached.


            Without dealing with all the arguments raised, the crux of this dispute lies in whether or not there was substantial evidence to support Carrier's finding. Not only was the charge at best vague, but we find that there was absolutely no probative evidence to support the Carrier's finding. As an the newspaper story does not support this conclusion. Had Carrier postponed the conclusion of the investigation pending the outcome of the court proceeding as had been done in the previous case cited, our conclusion might well have been different. In this matter, however, we find that Carrier has not and hence the Claim must be sustained. Since Claimant is no longer an


.. ,s-~..~,,.
              Award Number 20160 Page 4

              Docket Number CL-20205


employee of the Carrier the remedy in this matter is simply that of back pay. We shall provide for payment for time lost, in accordance with Rule 24, for the period beginning with February 17, 1972, the date of Carrier's decision finding Claimant guilty, till August 18, 1972, the date of the dismissal of the robbery charge.

        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 Employee involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June
That this Division of the Adjustment Board, has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                  A W A R D


Claimant shall be made whole in accordance with Rule 24 for the period from February 17, 1972 to August 18, 1972.

                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
 Executive Secretary

 Dated at Chicago, Illinois, this 28th day of February 1974.

LABOR ~,F:-R's a;;s.;,,,R To CARRIER ~:E:TERS' DISSENT

TO A`:_'13D ?0150 (CL-f~2~j)

(R,:ferco Lic'oo=an)


                                    '

        The iiissarmars s.-,ute that "Carrier did nou find


Claimant ;t:ii-- of tile robbery chr,r7ea Ratner, Carrier found

 Claimo_·:.` ;'; _1 ;-- ef -n- _ ted on a r obee1'y charge and

 post - ~; i3ol`

        T:lic ._;:!ard oIO^erly holds taat "the evidence in


the recc:'ci a. : :all ac t'-.~ ;~owspaper story does not support
th.15 Cnn ClU:il~.l " t h 3L tie _n .'v en en arrested J
 LL, father, L.he

 l .t
 art1C ., ., ..,_- , i yQ been F·'I'^1~=.'.1Cd~ T.·1.'..t, `.Jl1Jilln:`T, L'.1'Pa1-,n
 meat, :I^ i::cd _ c~:;7 ,.o__d -:o -.s not to be ~.~ _~r__.d im j- n_1a

 Carric,' J'ted no rules all.;-red ,-,o -ve been violated by Clr;_..ant 'ce_n~ ._.,;i.;ned and pcstinr; bond
 :;eit:,e;' did to nr;wspaper article make mention of Claim-tt's .:-pIo:·cr, therefore, no acve:'se puulicity ensued.

 The award is correct in holain:, that the provisions of Rule 19 recuive a dec'-sion be made within fifteen days and that, in this dispute, no decision had boon made within that titre Iii-,it.

        The .,isao.a_ does not detract from the sound r

easonin;3 of this Award and t.".e citation of precedont ;.'-yards in support thereof.i

                          Fletcher

                          Labor ~e:;'oe_

                          3-?_d-71.E