PARTIES TO DISPUTE:

NATICHM RAILROAD ADJQBTK®T HOARD

Walter C. Wallaee, Referee

(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
Express and Station Employee

(Sontk.ern Pacific Transportation Company

Award Number 21137
Docket Nmber CL-21259

STAT' CF CIAIK: Claim of the System Committee of the Brotherhood (GL-7932) that:

(a) The Southern Pacific Transportation Company violated the current Clerks' Agreement when it dismissed Mr. T. 0. Hooher from service following investigation at which charges of violation of its Rsles 801, 804, 810 and Q were not convincingly proved; and

(b) The Southern Pacific Transportation Company shall now be required to reinstate Mr. Hooher to service and compensate him for eight boars at the rate of Bill Clerk Position Ho. 41 Ma' 11, 1974 and each date thereafter until restored to service with seniority rights unimpaired, plus insnrence, hospitalization and all other emoluments provided in the Agreement.

OP3311M OP HOARD: The claimant, F. 0. Hoohsr, entered the Carrier's
service on February 6, 1967 as a clerk on the San
Joaquin Division. On June 12, 1974 be was dismissed from the service of
the Carrier.

On May 9 and 10, 1974, claimant vex working as Hill Clerk assigned at the station of Stoekton. California, 4:30 pa to 12:30 am. His position required him to travel from Stockton to Loth in a vehicle provided by Carrier via direct route to pe of these duties, he vas required to return directly to his headqsarters at Stockton and perform clerical duties as instrscted. Over a period of time prior to Nor 9 and 10, 1974, el aima"t's :ark was not being done and his supervisor periodically called the station of Lodi during the hours claimant would logically be there. Obtaip~g no response he placed claimant under surveillance to monitor his activities. Carrier alleges that during his shifts on May 9 and 10, 1974, claimant was engaging in other activities not connected with bin duties.

As a result of his actions on the dates involved, claimant was cited for formal investigation:

Award Number 21137 Page 2

Docket Number CL-21259

) in connection with his allegedly absenting himself from the position which be was assigned between 8:30 pa end 11:55 ping May 9, 1974, and between 9:15 pa aW 10:35 pa, May 10, 1974;

(2) using company vehicles during the above mentioned times for unauthorized travel with unauthorized passengers to Oakdale on flay 9, and a rural area east of Stockton on May 10, remote frost his assigned duties=

(3) allegedly engaging in unauthorized personal business at Oakdale during his tour of duty on May 9 and in the vicinity of Stockton on May 10 daring the above mentioned hours;

(4) alleges using and being in possession of alcoholic beverages while on duty at 10:35 In on may 10, 1974."

In this connection cislment was charged with violating the following rules which read in pertinent part as follows:

Rule 801

Hmployes will not be retained in service who are ...indifferent to daty, ....dishonest....or who conduct themselves in a manner which would subject the railroad to criticism.

Rule 804

Any act of ....misconduct orrillfaidisregard or negligee affecting the interests of the Company will not be condoned and mast be reported.

*am 810

Employee must report for duty at the prescribed time and place, remain at their post of day, and devote themselves exclusively to their duties during their tour of duty. They must not sbseit themselves from their employment without proper authority. They mot not engage in other business without permission of the proper officer.

Rule 0

The use of alcoholic beverages, intoxicants or narcotics by employee subject to duty, or their possession or use while on duty, is prohibited."

Award Humber 21137 Page 3

Docket Humber CL-27259

on the basis of evidence adduced at the formal investigation held with claimant on June 4, 19'(4, claimant was dismissed from service by letter dated June 72, 1974 from Carrier's Superintendent for violating the above roles.

At the Hoard level Carrier introdnced.certain evidentiary matter concerning claimant's misconduct and failure to follow instructions during his seven years of service prior to these charges. Although no objection -,pas made on behalf of the claimant and a contrary assertion was made, we qaestiofwhether this evidence is properly before this Board for consideration. Our search of the tra such evidence. In fact, claimant's testimony at the hearing seems to contradict this vies. Evidence that is not part of the record established on the property cannot be a basis for eonsida'ation by this Hoard as a matter of jurisdiction. Similarly, we believe the claimant's contentions related to the fairness or unfairness of the hearing may be subject to the same objection. Nevertheless, we conclude the hearing afforded claimant on the property was fair, thorough and impartial. The exchanges between the presiding officer and claimant's representative were spirited, but hardly a basis for raising any question related to fairness.

With respect to the evidence, it in not this Hoard's function to

substitute its judgment for that of the trier of facts when there is sub
stantial evidence in the record which supports the conclusions reached.
Here the testiaozW of Carrier witnesses Brent, Hr anus, Henry and
Dixon satisfied this requirement. !he offenses charged are serious ones
and, in accordance with the decisions of this Division, are a basis for
dismissal. Absent a finding that Carrier's actions were arbitrary, capri
cious or discriminatory, we cannot disturb the decision reached or the
penalty assessed here.

FIHDnHB: 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 Railwsw 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 not violated.

Award Number 21137 Page 4

Docket Humber C1.-21259

A 41 A H D

Claim denied.

HATIUIAL RAILROAD ADJUSTMT HOARD

By Order of Third Division

ATTEST: i

Ala PA444ive Secretary

Dated at Chicago, M1noia, this 30th day of July 1976.