(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlirgl grp~.eas and Station Employes PARTIES TO DISPUTE: (Norfolk and Western Railway Company

1. Carrier acted in an arbitrary, capricious, discriminatory, biased manner when, without Just cause, it dismissed Clerk J. G. staylor from service of the Carrier on January 26, 1979.

 2. In view of such arbitrary, capricious, discriminatory and biased action the Carrier shall not be required to:









              (e) Pay Clerk J. G. Staylor interest at the rate of 18%, compounded annually on the anniversary date of this claim for amounts due in Item 2 (b), supra.


OPINION OF BOARD: The claimant herein had been employed in a clerical.
 capacity by the Carrier., with a seniority date of
 march 16, 1972.

 The clerical employee of the Carrier vent on strike beginning July 10, 1978. When negotiations between the parties did not result in a settlement, the President appointed an Energency Board to consider and make recommendations on the issues, and requested the employes to return to work. On October 6, 1978, an injunction vas issued by United States District Judge Aubrey E. Robinson,, Jr.., in proceedings brought to enforce the status quo required upon the appointment of the Presidential Emergency Board. Ordering Paragraph No. 4, of the injunction, which has been made a part of the record, reads:

          "(4) 'flat each carrier party to these cases shall not, during the period in which the status quo provisions of Section 10 of the Railway labor Act is in effect, engage in any action or actions of reprisel, recrimination, or retaliation, of any kind against any of its employees for conduct of such an employee related to a strike or picketing of the carrier by defendant BRAC over or in connection with the labor dispute between BRAC and the 5W. During the p the status quo provision of Section 10 of the Railway Labor Act is in effect, no disciplinary action or actions shall be instituted, or progressed further if already instituted, nor shall any penalties be assessed or continued to be assessed if already imposed, for actions occurring during and related to a work stoppage over or in connection with the labor dispute between defendant BRAD and the N&W; any otherwise applicable time limits upon the institution or progression of disciplinary proceedings based upon such conduct, including time limits established by collective ba which the status quo provision of Section 10 of the Railway Labor Act is in effect; and disciplinary proceedings based upon such conduct may be institut progressed, or if already instituted, further progressed, or disciplinary penalties already assessed may be enforced, after the expiration of the said status quo period within such time limits as so tolled."

      Award Number 23253 page 3

      -- Docket Number CL-23361


On January 8, 1979, the parties concluded apreemeL:s, effective January 12, 1979, disposing of the issues precipitating the strike. Section 3 of Agreement Aated January 8, 1979, provides:

          "Section 3. There will be no disciplinary investigations, grievances, reprimands or any assessment of

          'fines or penalties by either party against any. employee represented by BRAC because of any act or non-action during the strike, excluding, however, disciplinary actions taken as a result of violence resulting in substantial injury and damage to persons or property."


On January 17, 1979, the claimant was served with notice of investigation:

          "You are hereby charged with disloyalty and unbecoming conduct by reason of your malicious participation in the vandalizing of NW track temper machines (Mos. 17249 and 30952) located on the Hill Track, Mile Post N-132.9, B·ukeville, Virginia, on the night of August 7, 1978, at approximately 11:00 P.M... which resulted in damage to such equipment estimated at $4,918.00.


          You are hereby instructed to report for an investigation in connection with the above charges to be held in the office of Assistant Superintendent, Division Office Building, Crewe, Virginia. Friday, Janur-^y 19, 1979, commencing at 9:30 AM.


          If you desire to have a representative or representatives and/or witnesses present at 4r investigation, you may arrange for their presence."


The investigation was conducted as scheduled and on January 26, 1979, claimant was notified of `is dismissal from the service.

        In its submission to the Bc:.ri the Organization contends:


          " ...therefore, for all intents and purposes Claimant did not come rithin the purview of Carrier's rules and regulations during a long, drawn out strike."

        = Award !lumber 23253 page 4

        Docket Number CL-23361


The Board cannot agree with such contention. The relationship between an employe engaged in a legal strike and his employer continues to be employer-employe. See Avard 13127.

 The contention has also been made that claimant has been subjected to double jeopardy in that he vas tried in Civil Court, made restitution by agreement with the Carrier, with the concurrence of the court, and also paid the supreme penalty of dismissal from the service of the Carrier involving the saw alleged occu a Carrier's right to discipline an employe is unrelated to the aetiona of criminal or civil courts. See Awards 19929 and 13127.

 The Organization has also complained, as it did on the property, as to the manner in which the investigation was conducted and the actions of the hearing officer.

 While we subscribe to the general proposition that a hearing officer should be accorded considerable latitude in his development of the testimony in a disciplinary proceeding, we are disturbed with the actions of the hearing officer in this case wherein he caw dangerously close to exceeding the limits of propriety by his manipulation of, and, in at least one instance, the total elimination of the testimony given at the hearing. Were it not for claimant's admission of involvement in the episode in question, we could reasonably find that a fair and impartial hearing was not accorded in this. Case.

 However, when all the facts and circumstances are considered, it is our opinion that the ends of justice in this case are best served by returning claimant to service with seniority and other rights unimpaired, but without compensation for time lost. Claimant is cautioned that his admitted actions were extremely serious and badly misguided. Any repetition of this type of activity could - and undoubtedly would - result in his permanent termination as an employe,

        FI1<DIPGS: 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;
      Avard Number 23253 Page 5

      _ Docket Number a.-23361


That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the discipline was excessive.


                      A K A R D


        Claim sustained in accordance with the Opinion.


                              NATIONAL RAILROAD ADIUSMUNT BOARD

                              By Order of Third Division


ATTEST: ~~.
      Executive Secretary


Dated at Chicago., Illinois, this 15th day of April 1981.