(Brotherhood 'of Mniatemace of Way Employee PARTIES TO DISPUTE:


STATE OF CLAM: "taxis of the System Committee of the Brotherhood that:

 'unauthorized possession of, and removal of ffou:(4) hubcaps JframRobert Bailey, r. fvsn-automobile
 located on Conrail. automobile carrier oar la Train I8CH6 at Salaasnoa, If:7, at
 approximately 8:30 A.M. on September 1T, 1979' war arbitras7, vithont just an
 sufficient cause and on the basis of aaprovea charges.

 (2) Welder 361PW Robert Bailey, Jr. shall be reinstated with
 seniority and all other rights un! nvalred and he shall be fed for all
 wage loss suffered."

 OPINION OP HOARD: Prior to his dismissal, Claimant was employed as. a we1AW
 helper with about nine years of service. an the date in.
 valved is the dispute, claimant was assigned to vark with welder R. W. Wheeler.
 They proceeded to Salamnna, N-7., is 0cars1l Truck J 1105, to weld rail ends.
 They arrived at that location about T:55 A.M. The welder went to the depot to
 cheek on tssiM and claimant states that he went to the rest roam in the depot.
 A fen minutes later a freight train stopped at Sa2ammnm. Os September 21, 1979,
 claimant was notified to rdpoQ't for hearing an the dharge:

Rht hearing was scheduled far September 28, 1979, and me "~dncted as scheduled, folloving vhiah claimant was notified on October 9, 1979, of his dismissal is alt capacities.

 In the iavastilptioa, or hearing, the only witness, besides the accused, was a Mr. S. D. Denning, Patrolman, Salamanca Police Department. The Patrolman testified that he received a call from an infaaamxt who reported that there were two man on Conrail Track J 1185, across tram her house, and one of them had rema1!'xd. a hubcap from a van an the train; that the ran him, re. placed the hubcap and left; that a abort tins later the same track returned and rune of the aea again reeovsd hubcaps from a vehicle on the train and this time did not replace them.


The Patrolmen went on to testify that upon receipt of the calls mentioned, he proceeded to Conrail Yards, found the truck identified parked beside the standing train with two occupants in the cab, the claimant and Welder Wheeler. He questioned Wheeler if he had any knowledge of the hubcaps being taken from the tr denied any such knowledge; that he searched the truck and in the tool boa he four fow hubcaps, stacked one on top of the other, which hubcaps were identical to others that were on the vehicle on the bottom of the automobile oszxiez ear; that walman+ denied any knowledge as to haw the hubcaps got into the tool box of the irnckj that he. chedosd again with the original informant, who stated that it was not the blonde who took the hubcaps, but the driver with the red hat. He testified further that the welder. Wheeler, was wearing a red baseball cup. On questioning by claimant's representative, the Pa lower tier of the automobile carrier car that lad hubcaps missing that were identical to the ones that were on other vans and to the four found in the tool boa of the track and that two hubcaps were missing rind two different vans.

 In the investigation claimant stated that after various activities, he and the welder had been in the track about ten minutes when tie Patrolmen arrived; that he noticed hubcaps missing from the vans; that the train had been stopped about fifteen or twenty minutes when he observed the hubcaps missing; that he,saw Welder Wheeler remove one hubcap and replace it. He also testified that Welder Wheeler was wearing a blue cap; that he had done; and that he maw no one in the vicinity of the truck when he and Wheeler returned from the depot.

 Pram a review of the transcript of the investigation, it appears quite clear that the actual removal of the hubcaps from the vans was by Welder Wheeler. However, with claimant's close association with the welder, from the time they arrived at Salsmsncs until the hubcaps were disooved in the tool box of the track, it is Incredible that clsiaaat did not know of the removal of the hubcaps frasi the vans and the placing of then in the tool box of the track. Also incredible is claimant's statement that Welder Wheeler were a blue cap. The latter statement could only be considered an effort to defend himself and Wheeler. There is no evidence that cial.,an+ made any effort to prevent the theft of the hubcaps, or report the theft to any officer of the Carrier. Under all the circumstances, we agree with the Carrier that claimant was an accomplice to the theft and was guilty as charged.

 This Referee does not subscribe to the dictam contained in some few awards that: "Ho man should be found guilty of a disciplinary charge solely an the vmsubstantiatad evidence of a sole witness." Many disciplinary cases have been decided strictly on the basis of the testimony of one witness against the accused. In such cafes the issue then comes down to the credibility of witnesses, as judged by the h burden of proof is not required as may be required in coat eases and the same
                  -Number 24388 page 3

                  Docket Number MW-24594


rules of evidence do not apply. In the present case it is quite claw that the Salamanca Patrolman had no interest in the discipline to be imposed by the Carrier.

 In the railroad industry me of the most serious infractions by an employs is the tampering with or damage to shipments entrusted to the Osrrier. The public has a right to rely upon the integrity of Carriers and their em. ployes in the care and handling of goods entrusted to their care. The tech of that trust undoubtedly damages the relationship that existed between the Carrier and the clients it serves.

        The claim herein must be denied.


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


        That the parties waived oral hearing;


That the Carrier and the Employee involved in this dispute are respectively Carrier and Employee 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 not violated.


                      A W A R D


        Msla denied.


                          NATIONAL RAILROAD ADJM24M BOARD

                          By Order of Third Division


ATTEST: Acting Executive Secretary ,~-.
        National Railroad Adjustment Board


      Lear

By
 -0047- Rosemarie Branch - iaistrative Assistant

 Dated at Chicago, TiUn^la, this 26th day of may 1983.