Lamont E. Stallworth, Referee


(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employee PARTIES TO DISPUTE: (Illinois Central Gulf Railroad

                STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9365) that:


1. Company violated the terms of the agreement between the parties when they discharged Claimant James L. Thompson from the service of the Company as a result of an improper and unfair investigation. .

 2. Company shall now be required to reinstate Claimant to the service of the Company with all rights unimpaired and payment for all time lost as a result of his dismissal from the service.

 OPINION. OF BOARD:' On October 9, 1978, Carrier Special Agents Brown, Dorsey
 and Soukup began as investigation into shortages of parts,
 from automobiles at the Carrier's Wildwood Auto Ramp located in Chicago,
 Illinois. In the course of the investigation, Glen E. Mallory, Assistant
 Ramp Manager at that location, admitted that he had taken part is systematic
 thefts of automobile tires, wheels, radios and batteries since November, 1977.
 Mallory indicated to the investigators that Claimant Thompson was aware of
 these thefts and that he (Mallory) had observed Thompson taking tires and
 hubcaps from autos in the yard.

 Claimant Thompson maintains that he did not receive a fair and impartial investigation. Claimant asserts that he was entitled by the Agreement, Rule 22, to have a precise charge made as to dates and what was allegedly misappropriated on the dates in question. All that was alleged was that certain auto parts (tires, batteries and hubcaps) had been misappropriated commencing in November, 1977 and numerous occasions thereafter. No specific dates were mentioned, nor the items that were allegedly stolen. Claimant maintains that it is impossible to defend against such an approach.

 The Claimant also maintains that the Company made no effort to have Mr. Mallory and Mr. Robinson, Claimant's accusers, present for cross-examination by the Claimant. Instead, the Carrier relied on two statements; one of an admitted thief and one from an admitted fence. Therefore, there was no opportunity for cross-examination. Consequently, this resulted in Claimant not receiving a fair and impartial investigation. Claimant maintains that these procedural objections are well founded. (Award No. 31 issued by Public Law Board No. 2035, Award No. 9 issued by Public Law Board 2409, Third Division Award Nos. 18121, 17490, 14443 and 4425).
                    Award Number 23977

                    Docket Number CL-23959 Page 2


              _ v_


The Carrier maintains that Claimant's hearing was fair and impartial. Claimant received notice of investigation which stated that the investigation would be conducted to "...determine whether you misappropriated batteries, tires and radios from automobiles at Wildwoad Auto Ramp commencing about November, 1977, and on numerous occasions thereafter." The notice also contained copies of the statements to be used in the investigation. The Carrier maintains that this type of notice is sufficient and proper. (Awards 11170, 11443, 13764 and 18128) .

 The Carrier further maintains that the use of written statements in a formal investigation does not constitute a procedural defect (Third Division Award Nos. 16308, 11342 and 9311). Carrier argues that the statements of Robinson and Mallory were substantiated with other documentation, polygraph examinations and physical evidence.

 In his statement, Mr. Mallory gave a description of Claimant's participation in the thefts and C Mallory and two others. The Carrier contends that Claimant denies these charges, but offers no further repudiation.

 The Carrier also maintains that theft is an offense for which permanent dismissal is warranted (Award No. 3 of Public Law Board No. 1462, Award 15 of Public Law Board 2122, Award No. 3 of Public Law Board 1435, Award No..26 of Public Law Board 912, and Award No. -12 of Public Law Board 1493).

 There is little debate that theft or misappropriation of property is an offense warranting dismissal. However, the quality (quantum) of evidence to substantiate such a charge is of a considerably higher nature than required in other types of discipline cases. In addition, this burden of proof or persuasion rests with the C meet its burden of proof. Carrier's entire case rested upon the testimony: their Special Agents wherein statements of Mallory and Robinson were read into the record. The Board further concludes that the introduction of such hearsay statements of witnesses is not sufficient evidence to support a finding of. theft.

 In these circumstances, the Board concludes that the Carrier's charge is not supported by the record. Claimant shall therefore, be reinstated with backpay and without impairment to his seniority and all other 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;
                    Award Number 23977

                    Docket Number CL-23959 Page 3


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.


                                    NATIONAL RAILROAD ADJUSTMENT BOARE

                                    By Order of Third Division


ATTEST: Acting Executive Secretary
 National Railroad Adjustment Board

 By.
      / L.3.~,~E.~·~.


Rosemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 27th day cP Avgust 19~.