' ` NATIONAL RAILROAD ADJUSTMENT BOARD
Award Number 21513
 THIRD DIVISION Docket Number CL-21667
 J,
 ,,' Robert W. Smedley, Referee

 (Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, ( Express and Station Employes PARTIES TO DISPUTE: (Consolidated Rail Corporation ( (Former Penn Central Transportation Company)

(a) The Carrier violated the Rules Agreement, effective February 1, 1968, particularly Rule 6-A-1, when it assessed discipline of dismissal on J. M. Waters, Clerk, Detroit, Michigan.

 (b) Claimant Waters' record be cleared of the charges brought against him on September 30, 1974.

 (c) Claimant Waters be restored to service with seniority and all other rights unimpaired, and be compensated for wage loss sustained in accordance with the provisions of Rule 6-A-1 (h), plus interest at , 6 per cent (6P%) per 'annum, compounded daily. Claimant also to be made whole for any money he was required to spend for medical and hospital services, or other benefits which would otherwise have been covered under Traveler's Group Policy GA-23000.

 OPINION OF BOARD: Claimant was stopped by Detroit police and found to
 have 16 new automobile tires in his own private car.
 These came from a boxcar he was charged with checking that night. Claimant
 says he found the tires on the ground and was in the process of turning
 them over to carrier. The carrier chose to disbelieve this statement and
 discharged claimant.

 This Board will not judge credibility of witnesses or weigh conflicting evidence. Nor will it disturb management's discretion as to penalty, if the investigation was fair and if the charge was proven by substantial evidence.
But we cannot condone bias and prejudice in:conduct of the investigation. It is obvious from the record that both the hearing and deciding officers had prejudged claimant's guilt. The hearing was a sham. Among other things, claimant's guilt was conclusively inferred from his silence to the police officer after having been informed he had a right to remain silent and what he said would be used against him. These


admonitions dictate silence, not talk, regardless of guilt or innocence. The right against self-incrimination is a basic tenet of American law.. We do not adjudge guilt by silence. Claimant did testify at the hearing. He denied intent to steal. i
 An accused's protestations of innocent intent cannot belie his conduct to the contrary. But given an unfair trial, how can one say a fair trial might not have produced opposite results? The highly contentious aspect of the hearing does not influence this Board. Nor do we lay any weight to the result of state criminal proceedings respecting the incident. These are immaterial, as is testimony concerning the same.

 The reason for discharge stipulated by the carrier is unauthorized possession of the tires. This is not theft, the carrier apparently recognizing that proof of intent to convert is lacking. Yet the argument below and on this appeal emphasizes dishonesty. We cannot overstate the seriousness of theft if prove. In this, perhaps above all transgressions, the employer has the absolute right to protection. But, because of the due process deficiencies noted, and larcenous intent not being shown, the penalty of discharge is too severe.

 However, there is substantial evidence of irregular conduct by claimant, namely, having 16 tires in his car. This justifies discipline. Claimant shall be suspended up to the date of this award, a period in excess of two years, but then reinstated with all rights.

 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 Number 21513 Page 3

                    Docket Number CL-21667


                                                          I


                      A W A R D


        Claim sustained to the extent indicated in the Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 29th day of April 1977.