1. Carrier violated the provisions of Rule 24 when, on February 24, 1996, it held Claimant John Murphy from service pending a disciplinary investigation.

2. Carrier acted in an arbitrary, capricious and unjust manner in violation of Rule 24 of the Agreement, when by notice of March 18, 1996, it assessed discipline of "Termination from Service" against Claimant, pursuant to an investigation held on March 13, 1996.

3. Carrier shall now reinstate Claimant to service with seniority rights unimpaired and compensate Claimant an amount equal to what he would have earned, including but not limited to daily wages, holiday pay and overtime, had he not been held from service and had discipline not been assessed.

5. Carrier shall now reimburse Claimant for any amounts paid by him for medical, surgical or dental expenses to the extent that such payments would be payable by the current insurance provided by Carrier."

March 13, 1996, following which Claimant was notified of his dismissal from Carrier's service.

The Carrier's case against Claimant is circumstantial. The Carrier maintains that, although circumstantial, the assembled facts are so compelling as to lead to an unavoidable conclusion that Claimant intentionally defrauded the Carrier of the amount in question, and then attempted to hide that fact. Carrier's chief witness is Supervisor Jones, whose testimony in many details (especially concerning the events leading up to Claimant's departure from the property on February 24, 1996) differs diametrically from Claimant's.

Correspondence from the Organization to Carrier following the Investigation and notice of Claimant's dismissal raises a question concerning Mr. Jones' knowledge at the Hearing that an overage sum of $82.00 cash had been found in the safe formerly used by Claimant prior to the Hearing and had been deposited. The Carrier does not dispute that accusation, but maintains that such "hearsay" evidence is without weight, particularly coming as it does after the decision of termination has been made (Award No. 45, Special Board of Adjustment No. 1026.

The Board respects the Hearing Officer's responsibility in determining credibility. In this case, the Hearing Officer found Mr. Jones more credible than Claimant. However, in a case where circumstantial evidence is said to inveigh for dismissal, the Board has a serious responsibility to scrutinize the hearing record to assure itself that the circumstantial evidence permits no other reasonable conclusion than the one reached by Carrier, particularly where, as in this instance, the Claimant is a thirty-year employee with an otherwise unblemished record.

The record of the hearing suggests that the evidence presented is less than "compelling" and that the subsequent concerns of the Organization regarding Mr. Jones' contemporary knowledge of "found funds" may have merit. Of particular interest is Claimant's testimony (Transcript p.53) concerning the procedure for adjusting paper work:

. . . the procedure is if it's done with pencil, I erase and correct it and if it's written in ink, we use a dry white-out which covers it, but still leaves a record of it having been done.

Claimant's comment concerning the white-out implies that he would have been well aware that the overage he recorded on January 10,1996, would show through the whiteout. Accordingly, be visible to anyone inspecting the balance report. It rings untrue that a 30-year employee would attempt to defraud the Carrier via a method through which he knew he would be detected. Thus, the Board finds that there is more than a reasonable doubt that the circumstantial evidence advanced by Carrier is an accurate representation of Claimant's behavior and intent on the day in question.

With respect to the issue of whether Carrier violated the Agreement when it held Claimant from service pending an Investigation, we do not so find. The Board has consistently held that theft is a serious violation of the covenant between employee and employer, and Carrier was within its rights to withhold a suspected thief from service. However, we do not find that Carrier has met the serious burden of persuasion required by the circumstances of this case. Accordingly, we sustain the remainder of the Claim as presented.

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimants) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.