Form 1
TL S
 TH1RD DIVISION



The Third Division consisted the regular embers and in addition Referee Elliott H. Goldstein hen and s rendered.

                  (Brotherhood of Railroad Signalmen

PARTIES TO DISPUTE:
                      Railway


STATEMENT CL

 "Claim behalf the General Committee f Brotherhood Railroad Signalmen t Burlington oren Santa F (BNSF):

 Claim on behalf of T. S. Humble, to remove all mention of the
 investigation held on April , 2002 and any and all discipline fro
 his personal record, and payment for all lost wages inch
 overtime, beginning July 21, 02 until s returned ice,
 account Carrier violated the current Signal lmen's Agreement,
 particularly Rule , hen it faile trie t Claimant it
 fair an itial investigation, a without just cause issue
 excessive and unwarranted discipline to te Claimant s result f
 n investition held n April 2, 2002. Carrier cndee
 violation en it faile to noti the Claimant within 3 as of its
 decision t discipline the Claimant following te investigation.
 Carrier's File o: 35 02 0045. General Chairman's File No. 02- 1
 SF-1 l- . BRS File Case o.155 - S."

 FINDINGS:
The Third the Adjustment n the hole record
 evidence, fln s tat:

 t
 Form 1 Award No. 37604
 Page 7914
 -_0-_1
 The carrier r carriers and the employee oloyees involved- in this are respectively carrier and employee ithin the meanin f the Railway t,

 as approved June 21,1934.

      This Division f the Adjustment Board jurisdictivr the dispute

involved herein:

      arties to said dispute ere given due notice of hring thereon..


      InitiallY' the Board notes tat the Organization's reference to claim ate f

ly , , i the Notice Intent, was identified s typographical r. The _ tirht July 21, 21 is the correct ate, s confirmed t initial clai

    subsequent on-property correspondence regarding this matter.


      According to the record, the Claimant held the position of Signal man n one

the Signal Construction Gangs. t the time of the incident tat precipitated the
 pril , 2002 Investigation, the Claimant ha accumulate ed approximately three and
 one-half years of service with thCarrier, a note. The char set forth i e ul
 001 ice oInvestigation concerne the e Claimant's "responsibility if any, in
 connection with (his) allege failure o comply it Maintenance f y rule 1. ."

 It is undisputed ta, on June 1, 20 , the Claimant s arraigned incarcerated having been charged with seven counts of "Criminal Sexual
 Contact it Under 1years of age (3rd degree felony)" y criminal
 complaint fled in the Magistrate rt of Quay County, lie Mexico, n arch 3 ,

01. There is also o dispute that the State suseuently charged the Claimant __-ith 11 additional counts of cr i g final sexual misconduct involving a minor under 1 ~: years of e. The Ci ant's arraignment those cares was scheduled J

      1®


    According to the record, pursuant t the terms of Release Order a on

issue n June 7, 2 1 y the 1 tudicial District of Quay , e Mexico,
    Claimant a lease ed from custody subject to several conditions which, by his

signature, t li t n i re. f tconditions stated:
 For 1 r
 Page k1
                                                __ --1


        6`I further agree: of to leave the (county of Quay, State f e exico) without prior permission of the Court. Defendant ay travel through Oklahoma, New exico, and Texas, for o purposes only.


      I further agree: To avoid all contact with te alleged victims or their fily or anyone who ay testify in this case."


The Carrier primarily argued its decision to remove the Claimant fro _
 service, on July , 2001, pending Carrier Investigation, originally schedule for
 July 1, 2001, s completely warranted given the "serious infractions" it which
 the Claimant was charged. The Carrier further contende tat t 1 i t coul
 of a retained in service because a an his brother worked in a ,
 s the record shows, the Claimant's brother was the father f the alleged "victims.

 s noted aove, one f the conditions of the Release rend and required the Claimant not have any contact with the "alleged victims or thir family' r
 anyone who may testify in this case," ilso asserts. Indeed, s Signal Foreman
 Parker testified, because of the "movement f signal personnel y means f the
 exercise of seniori . . . it ul have een difficult if f not impossible to isolate the
 laimant from his brother r other potential witnesses."

 The Carrier also averred that for safety-related reasons t Claimant's
 removal r service s necessary. According to the Carrier, it believe tat,
 iven the charges facing the Claimant, he in all likelihood been experiencing
 66 ental stress," and his removal would have een i is 66 est interest" n i
 interest f his co-workers. Signal Construction n Supervisor Bealmear testified that,
 61-in a way of a frame ref mind he could come back and et hurt."

      The record contains several letters postponing the Investigation.

The Board
 notes at the outset that the postponements ere essentially y mutual agreement f
 e parties an ere necessary while the criminal cares ere pending before the
 Court. According to t a record, on arc 21, 2 2, a State e of New Mexico and
 the Claimant (Defendant) entered ta Plea and Disposition Agreement, in is the
 Claimant pleaded "no contest, pursuant to North Carolina v. Alford ' 11 to "'Count 12:
 Criminal Sexual Contact f a inr . . . ." The Carrier's Investigation t
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 e Docket . 7914
 0 -3-0- -31

 cares pertainin to the Claimant's alled violation of Rule 1.s then conducted April 2, 2002.

      t the conclusion of the Investigation, the Hearing Officer informe the

liant of the Carrier's willingness to reinstate him on a leniency basis, with
 seniority unimpaired but no backpay, effective April , 2002, pending his successful
 completion of the Carrier's customary return-to-duty medical requirements. It
 pears fro the record that the Carrier's decision to allo the Claimant's return
 a leniency basis was largely predicated on its receipt of a Post-Review Hearing
 rder dated arch 7, 2002 fro the Court, essentially permitting the Claimant
 and is brother t "have contact, t r with nuse, but only while at work,
 n only about their work." The Carrier's decision t reinstate the Claimant it
 leniency s conr i letter dated 2, 20 fro Manager Signals, . .
 Morgen.

 y letter date June 1, 2002, the Organization appeale the Carrier's y 002 disciplina notice o several procedural grounds, which torha afforded careful consideration. The three most sinificnt Procedural objections are as follows.

 First, the Organization asserte tat the Carrier's ay , 2 letter s
 issued outside the 3 - ay time limit provided for in Rule 5d). In its view, such
 error invali ate the Carrier's disciplinary actio and no justifies the Board's
 removal the discipline from the Claimant's record and issuance of a sustaining
 r s regards the claim for lost wages and benefits, as set forth in the above
 Statement f Claim.

      Second, it acontended that the Claimant s not afforded Agreement e


process a the Carrier denie the Organization's t the Manager Signals, r en, shoul be allo t appear at e Investigation a witness and,
 instead, assigned r en to the role Conducting Officer. It is ever conceded
 y the Carrier tat ren as "in the loo of individuals involved h
 knowledge tat threats ere a against the Claimant," t Organization urges.
 Obviously, argued i is capacity Conducting Officer, r
 as precluded fro testifyin about "threats" allegedly directed at a Claimant, in
 violation f Carrier's n Resources Policies addressing r1 ce
 For 1 r . 7604
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                                                ®_0 _ ®319


arssment and Violence in the Workplace issues. Moreover, the Organization asserted that because, in its view, orgen authorized the Claimant's removal fro

service, his ability to conduct the Investigation in an impartial manner had been
 compromised., Finally, the Organization asserted that or en "consistently
 refused" to answer important questions put to i the Claimant's representative
 t the Investigation.

Third, the Organization strenuously argued that the Carrier's decision to remove the Claimant fro service under the "excuse" of the restrictions containe

in the Release Order and and and to charge hi it"immoral and discourteous
 conduct" s clearly prejudicial to the Claimant. According t the Organization,
 e Carrier's removal of the Claimant fro service s premature because it
 occurred "before r. Humble a is day in court, and d was vindicated on all
 charges." t also argued that the record containe ample evidence that the Carrier
 .~` wrongfully chargeanreove" the Claimant fro service. n the
 rganization's view, this is so because, hen the Claimant eventually returned r, he was able dace himself on n entirely different- afro tat f his
 rother.

 With rear to the merits, the r aniztin strongly argued that the Carrier
 completely failed to carry its burden of proving the Claimant guil of engaging in
 conduct which specifcally y had violated any provision of Rule 1.6. In the
 Organization's view, the Claimant "vas exonerate y the Court i e Mexico,"
 roof that a charges ere based n "unproven allegations, which ere later
 dismissed."

 Turning to the issue of the nine months of lost time suffered by the Claimant,
 the Organization strenuously argued that the Claimant as the victim f disparate
 treatment y the Carrier. According to the Organization, Maintenance y
 Department employee "involve in a similar . . . s not removed service
 ntil after the courts found i guilty as charged and sentenced rims." Such
 `obvious s prejudgment," in the Organization's view, warrants a sustaining Award
 the Board, it respect tall monetary loses claimed ed herein, it added.

      e oar carefully reviewed e tire record this as ell s t

parties' is a the precedent as cite i support f their reeci
 For 1 Award .3760 .
 Page 6 Docket No. SG-37914
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 ositions. Initially, eve note that much of the evidence adduce the Investigation consisted f Court records. The testimony of Carrier witnesses el ear and Parker placed these documents within the context of the Carrier's u t comply with the Court orders and to manage the totality of the situation as it related to the Claimant's ability o Work for the Carrier wile the felony charges ere pending, .especially in light of the unusual fact that Claimant's brother worked it se

 gang an, again from the record, apparently was the father of te alleged The totali f the oral testimony and the documentary evidence produce t
 Investigation convinces the Board thathe Carrier sustaine its urden of proving
 the Claimant's violation f Rule 1. , regarding the standard oconduct wire
 Maintenance ay Department employees. a also find rote ur l error,
 justifying the or's oval or r modiflcation of the discipline imposed by the
 arrier in this particular case. Our reasoning is set forth below.

 First, in response to the Organization's contention that the Carrier as
 ithout just cause ti pose serious discipline upon the Claimant, the oar
 reiterates that, fro the recor before s, the charges substantially proven.
 The miscondcharges uct under Maintenance of Rule 1. clearly stemmed r
 criminal cares involvin immoral conduct completely odds it Rule 1.6, e
 find. a strongly disagree that the Clai ant's Alford lea f " contest" n is
 agreement t submit to 1 months supervised probation as tant to
 "exneratio by the Court in a Mexico," as the Organization contended. First
 Division r 252 an Third Division r 31931, in particular, upheld
 dismissal actions in cases involving indecency it a minor chil and embezzlement
 here the claimants in those cases essentially entere the same "no contest" pleas.
 ~~ere the nexus between the Claimant's admitted off-u ~ immoral c n can t
    s

arrier's requirement under Rule 1.theloyees refrain from engaging i
 "immoral" conduct s substantially proven. a further fin evidence that the
 "real issue" s situation f threats r " is ne work environment" against
 the
 Claimant . is s ignored y the Carrier, as the Organization argued.

 Second, consistent the Board's holdings in a252 , 1 1 a
 numerous others, further fin fro the facts that the Carrier indeed possessed
 .just cause t~ is iss the Claimant give is proven misconduct t theory
 t his retentio i service couave generated criticis r t Carrier
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 Page 7 Docket o. 1
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 and/or produced general loss of goodwill. However, in this ticular ca., it is
 clear that the Carrier id of dismiss the Claimant, but instea reinstated i
 leniency basis, but without the backpay and other benefits claimed fin o evidence i the recor that the Carrier's imposition f the

 arguably serious discipline lengthunpid suspension as inconsistent it e Carrier's alleged prior handlin f a "similar case" five years earlier. Again, under the factual circumstances, the Carrier had just cause to strongly discipline- the Claimant, and the discipline issue was neither "excessive" nor "unwarranted," we rule.

 Third, it rect to the Organization's procedural arguments, discussed
 i detail v, t oar ns ther is no persuasive evidence thatany provision of
 Rule s violate in any manner atsover. Hence, a rule e there is absolutely
 no reason for the Board tsstin this clai solely n procedural grounds.

 The oar specifically fins fro the recor that (1) under t
 circumstances, the Carrier's y , 2 letter merely reiterated reinstatement
 terms explained t the close f the Investigation, thus it was not the typical
 disciplinary notice; (2) Manager Signals r en was riateassi t
 the role e of Conducting Officer for the very reason that there were so few individuals
 who had been "in the loop"; (3) Supervisor Bealmear and foreman Parker were
 credible witnesses whose iectesti y as factual n , -
 i tion, provided t answers the representative's 's questions, which Morgen
 presumably not, given rgen's role f Conducting Officer; n (4) t
 Claimant's removal rior to t Investigation not prejudicial r t totality
 f the circumstances, including the stipulations contained iin Release, r
 n Bond, e overall seriousness f t charges i pre-Investigation
 removal, , and the operational constraints which prevented the Claimant and his
 rother r being adequately separated.

 Finally, t r emphasizes t Claimant's violation f Conduct l
 . stands proven given all a facts record t Claimant's Alford lea i t
 Claimant's criminal case. e Carrier' decision t t leniency t t laid
 was its prerogative. U t particular circumstances this case, again, i
 o1
 Page 8

    Award o. 7604

Docket . 37914
 - ®-3-1

 light of the arbitral precedent which clearly weighs against the Claimant, the claim is denied in its entirety, for all of the foregoing reasons.

 AWARD
Claim denied.

 ORDER
This after consideration* of the dispute identifled above, hereby orders
 r favorable to the Claimant(s) not be made.

 Dated at Chicago,

 I ADJUSTMENT
 BOARD
 Order of Thir Division

 ois, this n a e