NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22536
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Richmond, Fredericksburg and Potomac
( Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-8619) that:
1. Carrier acted arbitrarily, capriciously and in a harsh
and discriminatory maaaer, violating Rule 17 and other
rules of the Agreement when on August 18, 1977, it
dismissed from service Clerk L. A. Lester retroactive
to March 10, 1977.
As a consequence, Carrier shall:
2. (a) Clear the service record of L. A. Lester of
charges set forth in Mr. E. W. Devine's letter
of August 8, 1977 and any reference in connection
therewith.
(b) Compensate L. A. Lester for all time lost and
other benefits taken from him as a result of
Carrier's action.
OPINION OF BOARD: Claimant entered Carrier's service as a clerical
employe at Carrier's Potomac Yard on July 18, 1974.
On March 4, 1977, he was working from the clerical extra list at
Potomac Yard. He was called for and accepted position of Keypunch
Operator for tour of duty working 4:00 to 12:00 midnight. At 8:00 P.M.
he marked off sick.
On March 9, 1977, an investigator of the Alexandria Police
Department came to the office of Carrier's Manager of Personnel
Resources at Potomac Yard and requested a copy of claimant's work
record for March 4. The investigator also advised the Carrier's
officer that claimant had been charged with raping a sixteen year old
Award Number
22554
Page 2
Docket Number CL-22536
female shortly after 8:00 P.M., on March 4, 1977; that claimant,
accompanied by his attorney, had surrendered himself to the Alexandria
Police Department on March 8, 1977, and had been released on $3,000.00
bond.
On March 10, 1977, Carrier's Manager of Personnel Resources
removed claimant from service and issued the following charge against
him:
"On March 9, 1977, we received information to the
effect that you have been charged with a felony by
the Alexandria Police. Due to the nature of the
felony and in the interest of the Company and its
employees, it is necessary that you be held out of
service and you are being charged with conduct
unbecoming an employee. An investigation of this
charge is scheduled for Wednesday morning, March 16,
1977, at 10:00 a.m., in the Office of Superintendent,
Potomac Yard.
"If you desire to postpone the formal investigation,
of this matter until the question of the alleged
felony charge has been resolved, please contact my
office and we will arrange to postpone the investiga
tion to a mutually agreed-upon date."
At the request of the claimant, the investigation was postponed.
The felony charge against the claimant cam up in the CircuitCourt of the City of Alexandria on July
Investigation of the charge preferred by Carrier against the
claimant was conducted on August 5, 1977. A copy of the transcript of
the investigation has been made a part of the record. On August 18,
1977, claimant was notified of his dismissal from service, the letter
of dismissal reading in part:
"It is, therefore, obvious that you marked off duty
on March 4, 1977, under false pretense to meet the
party you became involved with and you continued to
remain off duty under the pretense of sickness for
several days thereafter, which absence was the apparent
result of the situation in which you had involved yourself."
Award Number 22554 Page 3
Docket Number CL-22536
In further handling of the dispute on the property the
Carrier's highest officer of appeals stated:
" ..Claimant was charged with conduc~ unbecoming
an employe, and if abandoning an assigent in the
middle of a shift and marking off sick under false
pretenses is not unbecoming conduct, I don't know
what would be."
The Organization then contended that claimant "...was charged
with one offense as contained in the notice and was found guilty and
dismissed for another offense than that with which charged."
In their submissions to the Board the positions of the
parties are about the same as on the property, the Organization contending that the charge preferred
related directly to the outcome of the felony charge, while claimant
was dismissed for falsely marking off account of illness at 8:00 P.M.,
March 4, 1977. The Carrier contends before the-Board:
" ..Claimant was charged with conduct unbecoming an
employe and, as Carrier will show, the evidence adduced
at the investigation was sufficient to convince Carrier
that this Claimant abandoned his assignment in the
middle of a shift and marked off sick under false
pretenses. Such conduct, under an acceptable definition,
is clearly unbecoming an employe."
With the issue thus drawn, the Board has carefully reviewed
the charge and the transcript of the investigation. The letter of
charge says nothing about claimant abandoning his assignment or marking
off under false pretenses. The Carrier's officer who preferred the
charge stated in the investigation that the basis for the charge
against claimant was the information that he received from the investigator of the Alexandria Police
he prepared concerning the inquiry of the investigator related only to
the felony charge. When questioned as to why he had taken claimant
out of service on March 10, 1977, he stated:
"Q. - Why did you take Mr. Lester out of service at
that time?
f
Y
G
Award Number
22554
Page 4
Docket Number CL-22536
"A. - The nature of the alleged felony charge caused me
to be concerned about permitting Mr. Lester to
return to work among the other employees. I felt
that his presence on the job would create an
attitude among our employees,. particularly the
female employees, which would be detrimental to
their work."
From the foregoing, the Board can only conclude that the
charge preferred against Claimant by the Carrier related directly to
the felony charge. We are quite sure that if the officials of the
Carrier had desired to charge Claimant with abandoning his assignment
by marking off under false pretenses, they would have experienced no
difficulty in doing so in clear and unmistakable language.
Based upon the record before us, the Board finds that the
claim must be sustained. It is well settled that an employe may not
be charged with one offense and dismissed for another. Pay for time
lost by the Claimant while out of service should be computed according
to the Agreement - Rule 17(h).
FILINGS: The Third Division of the Adjustment Board, after giving the
parties to this dispute due notice of hearing thereon, and
upon the whole record and all the evidence, finds and holds:
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.
A W A R D
Claim sustained as indicated in Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By order of Third Division
ATTEST:
PXA/4~
Dated at Chicago, Illinois, this 16th day of October
1979.
