(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: -(

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Roadway Equipment Operator H. R. Sabom for alleged "violation of General Rule B and General Regulation 700 of the Form 7908· was without just and sufficient cause and on the basis of unproven charges (System File 5-19-11-14-55).
(2) The claimant shall be reinstated with seniority and all other rights unimpaired, his record shall be cleared of the charges leveled against him and he shall be compensated for all wage loss suffered.
OPINION OF BOARD: An arrest warrant issued by the San Bernardino, California
 Municipal Court May 3, 1982, charged Claimant Sabom with
 Assault with a Deadly Weapon. Re was apprehended and taken off the job in or
 near the Cal Cartage Yard in Los Angeles May 5, 1982. The charges stemmed from a
 March 7th incident involving a female who required emergency surgery for the
 removal of her spleen allegedly as a result of a claimed assault by Claimant.
After the arrest, Claimant returned to work May 12th and, after working two days, was removed from service. The Hearing in this matter was conducted May 20, 1982. Claimant was dismissed from service for violation of General Rule B and General Regulation 700. General Rule B requires obedience to Rules and Special Instructions while Regulation 700 states:


Claimant's Court date was set for June 7th. According to the record, due to failure to prosecute, charges against Claimant were dropped June 28, 1982.
The evidence does not establish the Claimant engaged in any off duty conduct which adversely affected either his work or the Carrier's operation. No evidence of public knowledge of the arrest was submitted. The arrest by itself does not provide a basis for discipline. There was no admission by Claimant of an assault and neither the alleged victim nor any occurrence witness testified. It is significant that Sabom was allowed to return to work following his arrest and incarceration. The charges do not include a Rule 48(L) violation and Carrier did not dismiss Mr. Sabom under Rule 48(L) because of his arrest and removal from Company property by civil authorities.
 Award Number 25499
 Docket Number MW-25414
Page 2
The evidence also does not support the Carrier's finding that Claimant was in violation of either General Rule B or General Regulation 700. The arrest based upon a citizen's complaint which was not followed up does not establish that Claimant was immoral, quarrelsome, or in any way had conducted himself in a manner that the Railroad would be subject to criticism or loss of goodwill. Moreover, dismissal was not based on any absenteeism factor, only upon the Rules cited above.
For these reasons the Board finds that the claim is to be granted with Claimant reinstated with seniority and all other rights unimpaired and compensated for wages lost, o earnings or unemployment benefits received.
        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;
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 in accordance with the Opinion.
Attest:
NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Third Division
Nancy ver - Executive Secretary
Dated at Chicago, Illinois, this 13th day of June 1985.

CARRIER MEMBERS' DISSENT

TO

AWARD 25499, DOCKET MW-25414

Referee Cox


In the overwhelming majority of disputes involving the subject of discipline, even strong disagreements with Awards on the merits do not lead to the filing of Dissents. Occasionally, however, the Award is so egregious that good conscience requires that the Award not be allowed to slip into history without some final words of farewell. The Award in this case falls into such category. The Claimant was charged with violating Carrier Rule B and General Regulation 700. Rule B is a general rule requiring employees to know and comply with the rules and regulations of the Carrier. General Regulation 700 is a specific rule which, in pertinent part, provides:
 "General Regulation 700: Employees will not be retained in the service who are ...quarrelsome or otherwise vicious..." The facts established at the Investigatory Hearing are as follows. At the time of the event underlying the dispute, Claimant had been in the service of the Carrier for eight months. One of the witnesses called by the Carrier at the Investigation was Special Agent Albertson. He testified that on March 7, 1982, the Claimant was arrested by the local police for creating a disturbance involving a female victim. It later developed that the victim required emergency service for the removal of her spleen as a result of an assault on her by Claimant. The original charge of creat and Claimant was rearrested on Carrier property on May 5. The witness testified that his knowledge of the facts was obtained from the local police conducting the investigation. The Clai testimony of the Special Agent. He did testify that he made bail and returned to work on May 12; that he worked for two days; and that he was revved from service by the Carrier on May 14.
 Dissent To Award 25499 Page 2

 On June 1, 1982, the Carrier notified the Claimant that he was dismissed from service for violating General Regulation 700. In further handling on the property, the Organization contended that, by allowing the Claimant to return to work for two days before removing him from service pending the Investigation, the Carrier had deprived Claimant o also argued that the dismissal violated the Agreement because the criminal court had dismissed the charges against Claimant. The Carrier responded that the charges had been dismissed only because the complaining witness (the Claimant's girlfriend) had failed to appear at the trial, and that the Carrier's decision was based upon the testimony of the Special Agent at the Investigation. The Carrier also took the position that it had
Rule 48(o) of the Agreement.
 1. The Carrier's holding Claimant out of service pending Investigation was in accordance with Rule 48(o) of the Agreement and did not constitute prejudgment of t1Y Claimant. Rule 48(o) allows the Carrier to suspend an employee before an Investigation where serious violations of Carrier Rules are involved. Claimant was charged in connection with a particularly vicious assault and the Carrier certainly was exercising prudence in 21834, 10993, 19877, 11330. The fact that it allowed Claimant to return to work for two days after he posted bail did not deprive Carrier of its right to invoke Rule 48(o); it certainly was no basis for invalidating the subsequent Investigation. At most, if the suspension were unwarranted, Claimant would have been entitled to payment

 for the period of suspension. Third Division Awards: 22034, 25118.

    2. The Board has long held that acquittal by a court of law is no bar to

disciplinary action by the Carrier. Third Division Awards: 24608, 20781, 13127, 13116. In this case, the Claimant was not acquitted, the charges were dropped only because the complaining witness did not appear at the trial. The above cited Award accordingly, are even more appropriate in this case.
 Dissent to Award 25499

 Page 3

 3. There was substantial evidence to support the Hearing Officer's finding that Claimant had acted in a vicious manner in violation of General Regulation 700. Special Agent Albertson testified concerning the Claimant's guilt on the basis of information obtained from local police. While such information was hearsay, this Board has long recognized that hearsay evidence is admissible at Investigatory
 Hearings. Third Division Awards: 21228, 19933, 19558, 16308. Of perhaps even greater significance, the testimony of the Special Agent was not controverted by the Claimant. Surely, the testimony of the Special Agent, as well as the fact that Claimant had been arrested on Carrier property and was out on bail at the time of the Investigation, constituted sufficient probative evidence to require at least a denial by the Claimant.
 4. The Board has long recognized that when the nature of the improper conduct of the employee is severe, the employee is subject to discipline whether the conduct happened on or off railroad property and without the necessity of a finding that such conduct brought disrepute upon the Carrier. Third Division Awards: 24994,
 21825, 21334, 21228, 19263. Certainly, the vicious assault perpetrated by Claimant in this case warranted the severe action taken by the Carrier.
 The majority has ordered that the Claimant be reinstated with backpay without referring to even one of the above issues. We believe it is clear that a Dissent to such an award is necessary.

            I


W. F. UKEA
 M. V'TIzTG1(RHur

 P. V. VARGA,

 . E. YOST