(Brotherhood of Maintenance of Way PARTIES TO DISPUTE:

STAuT1r3VT OF (S.A1M: "Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Cook Herbert Lacy for alleged 'dishonesty' was unjust, unreasonable arbitrary and an abuse of carrier's discretion (System File 37-sa.-77-76/12-39 (79-25) s).

 (2) The hearing held on February 26, 1979 was not held as required under Section 7 of Agreement
(3) Far the reasons set forth in either or both (1) and (2) above,, Cook Herbert Lacy shall be reinstated with seniority rights unimpaired and, compensated
OPINION OF BOARD: Mr. Herbert Lacy the Claimants was employed as a Cook by
 the (terrier for six and one half years. On December 12, 1977, he was arrested for and charged with receiving stolen goods and for contributing to the delinquency of a minor. Claimant was released on bond and his case ultimately disposed of by 1978. He was found guilty of the charge of receiving stolen goods sentenced and placed on probation for three years. The charge of contributing to the delinquency of a minor wa

Rule 39 of the agreement for violation of Rule 18 of Carrier s Safety Rues for
 Engineering and Maintenance of Way Employes, specifically for violation of that
 portion of the rule dealing with dishonesty as a result of his arrest on
 December 12, 1977, and subsequent conviction on November 30, 1978, for re ceiving stolen goods. He was ordered to attend formal hearing set for February >?,
 1979·

 Because of an alleged misunderstanding of the notice Claimant did not show up for the February 12, 1979 hearing, it was postponed and was held on February 26., 1979. Carrier amended its charges, adding the charge of insubordination for failing to 1979·
                  Award Number 23539 Page

                  Docket Number MW-23494


From the outset the Organization took the position that Carrier failed to comply with the time limit provisions of Rule 39, in that it failed to file charges against Claimant within ten days-from the date violation became known to Management, since the incident took place off the property when Claimant was off duty.

        The pertinent part of Rule 39 read as follows:


            "Rule 39, Discipline and Grievances.


            Section 7. Whenever charges are preferred. against as employee, they will be filed within ten (10) days of the date violation became known to Management. Of course, this would not preclude the possibility of the parties reaching agreement to extend the ten-day limit."


        There are two questions for this Board to decide:


(1). Was Carrier aware of this alleged violation mare than ten days prior to February 5, 1979 and

 (2). Did this "off the property and off duty" incident injure Claimant's effectiveness on the fob, or result or cause damage to (terrier's' reputation in the market place or in the industrial community. (See Referee McBrearty's Third Division Award 21293)

 The Carrier in defending its position in Question No. 1, argues that the Division Engineer was the "Management" referred to 1n Section 7 of Rule 39P quoted above, since he was the officer authorized to prefer charges against the Claimant. It takes the position the Captain of its Police Department and his subordinates are not included within the scope of the term "Management" as used in the Rule. Therefore, the ten-day time limit did not start running until the Division Engineer received the letter of January 25, 1979, from the Captain of its Police Department informing him of the incident. The record, specifically Carrier's Exhibit "H", Special Agent Biggs' letter dated January 23, 1979 addressed to Captain of Police, clearly shows (terrier's Special Agent informed his supervisor, the Captain of Carrier's Police Department in a telephone conversation on Decembe 17. 1977 of the charges and arrest of Claimant on the previous week end. It is a universal practice in this industry that the police departments or special agents departxnentu promptly inform department heads of the Carrier of any misconduct coming to their attention. Thus, if we accepted Carrier's argument, it is inconceivable that Division Lhgineer or his supervisor woo not promptly in or Police of the serious chorgc of contributing to the delinquency of a minor. We can not, however, accept the argument that the Captain of Carrier's Police Department is not included within the meaning of the terns "Management" as used in Rule 39. It is inconceivable that the negotiators of Rule 39 intended for the Carrier to have the
                    Award Number 23539 wee 3

                    Docket Number MW-23494


right to unilaterally interpret the application of the term "Management" on a case by case basis designating whomever it desired to come within the meaning of the term, thereby frustrating the application of the rule. The texts "Management" in this rule ha Absent such application the bier could logically, in the extreme, contend the only person qualifying under the term would be the President of the Compatw.
        Question No. 2 poses intriguing arguments. Claimant was arrested and

charged by civil authority on December 12, 1977 for violation of the law for
 receiving stolen goods sad for contributing to the delinquency of a minor.
 Carrier's Special Agent reported this to his supervisor, captain of the Policy
 Department, on December 17. 1977. A charge of contributing to the delinquency
 of a minor which also incl ~ e engagement in unnatural sexual acts before
 a minor are normally "front page" news and becomes common knowledge to the com
 munity. The Carrier had every right at that time to protect its reputation
 by, conducting its own investigation of the incident under the provisions of
 rules of the agreement to determine Claimant's responsibility, if any, in the
 civil charges. Its investigation would have been conducted under procedures
 far less stringent with respect to rules of evidence as opposed to a court of
 law. But, the Carrier chose to take no action and retained Claimant within its
 employment until February 5, 1979. 67 days after the Court's decision and al
 most 14 months after the incident. There was no evidence produced is the
 investigation that the continued employment of Claimant during this period
 harmed Carrier's reputation or did harm to its revenues. Thus, it is difficult
 for this Hoard to accept arty argument, since Claimant had been retained in Car
 rier's employment for 14 months without causing harm to the Carrier., that his
 continued employment after the investigation would cause harm or damage to Car
 rier's reputation. CIt is dear to this Board that the Carrier slept on its
 rights. Additionally, the Court is its infinite wisdom chose not to punish
 the Claimant. It handed down a three year sentence but suspended it and placed
 him on probation. This Board, under the circumstances present here, should do
 no less.

 The Board after careful and painstaking study of the entire record finds that a Carrier erred is its determination that its first knowledge of the incident was the receipt on January 26 or 27, 1979, of Captain of its Police Department's letter of January 25, 1979. The record shows it had knowledge of the incident on December 17, 1977. Additionally, if the Carrier wanted to protect its reputat it should have done so in December 1977. The Claim must be sustained.

 Since we have ruled the investigation was not held in compliance with the rule, we are dismissing the charge of insubordination.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidences finds and holds:


        That the parties waived oral hearing;

                      Award Number 23539 Page 4

                      Docket Number MW-23494


That the Carrier and the Employes involved in this dispute are respectively (terrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

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

        That the Agreement was violated.


                        A W A R D


        Claim sustained.


                              NATIONAL RAILROAD ADJl1S'lM:NT BOARD

                              By Order of Third Division


ATTEST:
      Executive Secretary


Dated at Chicago, Illinois, this 26th day of F0brV^rY 19a2·

 ycGEIVED~.

 [,=;t
      o ,t~F~o


09o OiEic~'~
                  rnaarFR MEMBERS' DISSENT


              -AWARD NO. 23539' . (DOC= taw-23494)

                , Referee Lorry ,


This award overturned the dismissal of an employee who was found guilty of receiving stolen goods by a criminal court. Subsequent to the conviction, the Carrier charged the Claimant with dishonasty, held a fair and impartial iavestigatioa.9 and then dismissed him. The Majority determined the charges were not tiled against the Claimant within the ten day time limit provision of Section 7 of Rule 39; Discipline and
 Grievance.

    Section 7 of Rule 39 reads as follows:


        "wherever charges are preferred against~an employee,'

        .they will be filed within tea (10) days of the date

        violation becomes known to I Management. Of course,

        this would not preclude the.poasibility of the parties

        reaching agreement to extend the ten-day limit.". .


    In this case the proper Carrier Official,, the Division Engineer., did not

`. have knowledge of the violation until January 25, 19?9. The letter of charges was sent to the Claimant on February 5j, 1979: - well within the ten.7day time limit. FIoaever, the Majority is this award determined that the agreesart 3a- '. tended the term "Management" to include the Captain of Fblicelxho had knowledge more thaw tea days before the letter of charges was Issued. Clearly the .

 appropriate Carrier Official to be charged with knowledge o! a. violation of -;the rules could b in the instant case. The Majority was over-inclusive in its interpretation of the cord "Management" as used is Section 7 of Rule 39·
              _ ._ ,.


                              CARRIER hMEERS' DISSENT TO

                        - 2 - AWARD 23539 DOCKET W-23494


It is inappropriate for this referee to suggest that the National Railroad Adjustment Hoard follow t the disciplinary action taken by a Carrier. Surely, the difference between a criminal trial and industrial justice in the Railroad Industry has been delineated matey times bef In Award 20423 (Li.ebermea), the Hoard held: '

 "At the outset we must poi out that the disciplinary process in this industry does not follow the careful technical procedures required in criminal trials; on the other hand the rights of employes to due process and equity in the investigation process must be scrupulously preserved." This Award does not address, even as allegation of prejudicial error which would have deprived the Claimant of his due process rights. Rather, this Referee rushes to blithely skip over the requirement of substantiating some fatal flax in the investigation process,, is his eagerness to reinstate an obviously undeserving employee.

 It is instructive to recall Justice Douglas' words from the Steelworkers?; i Triology:

    "Nevertheless an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement." (United Steelworkers of America v. Enterprise Wheel Ca


In the instant award the Arbitrator did, is fact, dispense his own version of justice, by reinstating a clearly guilty individual. Many awards

                                                        t.

                              CARRIF'.ct MEMEEt3' DISSEtrf TO

                        3 - AWARD 23539. MW-23494


of this Hoard have held that a procedural error should not be used to over-

 turn the discipline imposed. See -

    Third Division Award 11775 (Hall):


        "We hold to the general view that procedural requirements of the agreement are to be complied wi are unable to agree that the Carrier's failure in this regards under these circumstances., was a fatal error which justifies setting aside the discipline ultimately imposed."

See also Third Division Awards Nos. 20423 and 21805.
 The Majority in this award had every opportunity to deny reinstatement. Unfortunately., they took umbrage mom a minors unproven procedural technicality. Because of the impr and the gross miscarriage of justice, we are compelled to dissent.

                          0 le

                          M. Le ow


                          . E. Mason


                        Q~/R. 0'Conne11


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                        F1_. V. Varga _