(Brotherhood of Railroad Signalmen
 PARTIES TO DISPUTE:
 (Consolidated Rail Corporation



OPINION OF BOARD: On December 14, 1979, the Carrier directed a notice of
 investigation to the Claimant which read in pertinent part
 as follows:














Subsequent to the investigation the Claimant was discharged.

 The testimony of Police Captain E. Hessert adequately serves as a background for the charges. He testified as follows:


        "A. As on December 12, 1979, I had conversation with Agent

        D. S. McDevitt of the Illinois Department of Law

        Enforcement, at which time he stated that at 8:35 P.M.

        on December 11, 1979, he observed a Ryder truck in the

        alley in the rear of 149th Street, Harvey. Several

        subjects were moving furniture out of a garage and

        loading it into the truck. As he approached in the

        alley he observed these cartons were marked Ethan Allen

        Furniture and he identified himself as a police officer.

        At which time he stated one of the subjects later identified

        himself as J. R. Jones attempted to pull a revolver and he

        was placed under arrest."


There is little doubt based on a review of a transcript that the cartons were railroad property. This is not in dispute. However, while the Claimant doesn't deny loading the carts atup he does deny having knowledge that they were railroad property. He testified that he got involved because some friends had found furniture and asked him for help transporting it. He testified as follows:

          Mr. Jones, how did you happen to be there?


          A. I have known these guys, they are personal friends. They told me that they found some furniture that was in a field by a fire. That is all they told me. I went there to look at the furniture. While I was there Gerry came in. He said that some guy already came to look at it and wanted to put it in his apartment. Gerry drove the rental truck to Bobbies out and asked if I could lend him a hand and they told me that they would pay me for helping them load the truck. So that is what I was doing, helping them load it onto the truck ."


The critical question, in the opinion of the Board, is whether the Claimant was aware or had reason to be aware that the furniture was stolen either from a shipment of the Carrier or from some other source. The Carrier suggests that there is evidence to conclude that the Claimant was aware it was stolen property; on the other hand, the Organization asserts that the record is based only on hearsay and speculation and there is no proof that he knew the furniture was from a Carrier shipment or intent to be dishonest.

 It is the conclusion of the Board that there is substantial evidence to believe that the Claimant had knowledge that the material was stolen property. The record does contain hearsay evidence that the Claimant was in possession of a revolver when approached by the police and that he was subdued as he withdrew it from his pocket. While this is hearsay, the Claimant had an opportunity to question this testimony at the investigation and had full opportunity to deny having the firearm or drawing it. The record of the transcript is absent of such a denial; therefore, it must be taken as fact. Had he denied it, the value of the police captain's testimony would be greatly diminished. However the Claimant did not, thus, the Claimant's unexplained action of drawing a firearm upon being approached by a police officer is, in the opinion of the Board, substantial evidence that he was aware that his actions and involvement with the furniture
                      Award Number 24349 Page 3

                      Docket Number SC-24168


at the time was improper and dishonest. A person merely helping his friends, in most probability, would not pull a firearm when approached by a police officer. At the referee hearing before the Board, the Claimant did offer an explanation for the gun and its removal from his pocket; however, it is well established that the evidence to be considered by the Board in discipline cases must be presented during the hearing on the property.

 The Claimant's action of possessing and pulling the revolver from his pocket does establish that he was aware that he was moving stolen property but it does not necessarily establish that the Claimant was aware that the furniture was Carrier property. However, in the opinion of the Board, the fact that it cannot be determined if the Claimant was aware that the furniture was stolen from a Carrier shipment does not essentially diminish the seriousness of his behavior. An employe who knowingly possesses stolen property, Carrier's property or otherwise, violates the fundamental trust necessary for a railroad employe who continually works in the vicinity of enormous amounts of merchandise. Such conduct is very serious and discharge is appropriate.

 FINDINGS: 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:

 The the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Tabor 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 not violated.


                        A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
        National Railroad Adjustment Board


By
        Rosemarie Brasch - Administrative Assistant


Dated at Chicago, Illinois, this 2Tth day of April 1983.