Parties: Brotherhood of Eailsmy and Airline Clerks
 and

Statement of Claims "Claim of system Committee of the Brother-




                    (h) Claimant N.o1nberg0s record be cleared of the charges brought against him on ?Say 16, 7.974, and compensated for all uages lost during the period held out of service."


Discussions The Claimant, and four other Carrier employees.
 were arrested by the Now York City Police, on MY 13, 1974. at approxi
 mately 11:1,5 P.M. in the vicinity of Rack C-2 in Hunt Points Market.
 The other employees arrested were a yardmaster and three members of a
 yard. crew.
 The basic charges which the Carrier levell®c against the claimant and the four othar employees wsrre derived from a report filed by Captain F. <J. Dowd of the Carrier's Police Dopartaent. Captain Dowd's report stated, inter aria, that the Stow York City Police Department Ct'Picars told him that they had been keeping Hunt Points torket under surveillance for several weeks because consignees at the
                                      PL e cQ035


Award No. 31
 Care No. 35
 _2_
 Market had been complaining of ehortagex in their freight shipments.
 The New York City Police Offic= further otated that on the night in
 question they had obarvod a train crow at approximately 11130 P.N.
 pull an engine along side a freight car end remove approximately 40
 cartons of tomatoes from the ft-jight car and place them on the engine
 and then proceed to where several private automobiles were parked near
 the tracks. The Police report further stated that call the crew members,
 including the Claimant, appded when they started to unload
 the cartons of tomatoes from the engine to the private automovAles.
 All the carrier employs were arrested that night by the officers of the brew York City Police Department and released the next day on their own recognizance. on ty 14, 19740 the Claimant was removed from service and directed to attend an Investigation which me ultimately held on May 30, 19?4. FollorAring the Investigation, the Claimant and the other employees were dismissed from service on June 5, 19?4, The Organization progressed an appeal, and after the appeal h,.tha Carrier on October 8, 1974, iced the dismissal to a auspeasionr but no compensation mesa granted for time lost.
 At the criminal trial held on August 19. 1974, the Claimant and the other employees were acquitted.
 The record discloses that the Carrier after claims were filed. on its own motion, granted tack pay to the yardmaster from, Hay 14, 1974 to October 1974, with the exception of the days of hay 21 to May 30, 19?4: Public Ian Hoard, No. 1595 in Award No. 3 granted the Engineer back pay from May 14, 1974 to October 1?, 1974. Public law Board xo~.lb69-In Award No: 8.-*vaxded_haok pay from Ssptember-l, 1974. to October 18. 1974 to the two yardmen.
                                            C~-o3 too. 35


                        - 3 - PL 6 a®.35


                  wrie r°s 11orltion

The Carrier ztatg~d there w.9 w3Mcicnt probative evidence in the record to show that else Claimant r" in the
 7aad area. at
 Hunt Points riding the tae xh&n hap had no duties to perfera wFddi re
 quired his presence. The Carrier stated the Claimant was in this arcs.
 for the purpose of what he sari charged with doing. The C==ier noted
 that the Claimant stated it was his practice to part his csx every day
 at Auction Point. On the night in question, however, he par'kmd his car
 at another location, namely at a location where the tomatoes were being
 unloaded from the engine.
 The Carrier stated none of the eaployeez Involved ever satisfactorily evlained why they stopped the engine adjacent to their ,private automobiles.
 The Carrier stated that the fact the C2&1=r,*. ---d the other employees were aoquitted of the criminal charges is no valid reason for exonerating them from the charges the Carrier filed against then. The degrees of proof required in a criminal. proceedings are much stricter than in an employee disciplinazy proceeding. This distinction has been recognized by the majority of awards on this subject.
 The Carrier also asserts that thaws i® no merit to the several procedural objections interposed IV the Org®aiatdon. A fair analysis of the record of the Claimant's investigation r'veala that the Claimazit yeas permitted to present his defense in fu11, call his witnesses and examine and cross examine all xitnessee produced by the Carrier. The Carrier stressed that the Organization has not ehom that the Carrier acted in any arbitrary or,oapricious nanner. On the other hand. the Carrier has shown try the report of Police Captain Dow- that
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                                            A,rax-a No. 31 tee, No. 35

_ tr. _ the Claimant sass involved and trod responsibility for the attempted theft. The Carrier stressed that the olairant ma not able to explain satisfactorily achy he .as on the engine or why he was at the site of the theft. The Carrier etates there is eabstancial evidence to support that the Claimant was guilty as charged.

                Organization's Position

                The Organization stated that no valid evidence was

introduced at the Investigation to prone that the Claimant sues guilty
 as charged. The only evidence introduced at the Investigation was a re
 port by the Carrier's Police Department. Captain wxd himself maw nothing
 to incrimate the Claimant and the other employees. All that Captain Dowd
 knew about the alleged theft was what a New York Police Department Off
 icer told him. However, no flew York City Police Department official
 appeared at the Investigation. There were no eye witnesses present at
 the Investigation to testify, and be subject to examination arA- cross
 e=miTaon as to the alleged felonious acts o C2ai-r-a an"' his
 fellow employees. The only evidence presented against the Claimant me
 a written report. The Organization stated the Claimant fee denied his
 right to confront and cross examine his accusers. He was denied basic
 due process.
 The Organization stressed that no evidence lass introduced at the Investigation to show how the 40 cartons of tomatoes. were removed from the freight car and who removed. them. The record at the Investigation showed that vandalism was iddeepread at Hunt Points.
 71e-Organization.. stated that the: employees gavea valid explanation as to how the tomatoes got on the engine. These

            . PLB Qo.35


                                            Award No. 31 Caso No.

                        -5-35

employaes testified that they picked up 'these car-tons of tomatoes along
 the right of way a they sere lying, idth the intention of bringing
 tack to the Carrier's Ofiioe to have tl:,= rotu=ed +.o the consignees.
 However, the N®x York City Police Departt offiavrs a...-es'ted them be
 fore they toad an opportunity to carry out their program. The Organization
 asserted it was a standard and normal pancticrs for snplog-aes to pick up
 nexchandise lying along the tracks and wake it secure for the customers
 of the Carrier.
 The Orcanisation stressed that ell. other crew members were restored to their job and received compensation for the times lost. The Organisation stated that it is only fair that the Claimant should receive the same treatment accorded to all the other employees involved in the same incident.

 rindinges The Hoard, upon the whole record a ,rd all the evidence, finds that Employee and Carrier are r,.r'mployeo and Crmrrier within the Railway labor Act; that the Board has jurisdiction over the dispute, and that the parties to the dispute were given due notice of the hearinS thereon.
 The Hoard finds that the Orgahiaation's procedural. objections to the Investigation arts wall founded in that there was no prosecuting witness at the Investigation to testify as to the Claiiaat's alleged deliatual or criminal oonduet.. No member of the New York City Police Department, who were in fact the prosecuting or accusatory witnesses, appeared at the Investigation, to present the evidence-thatrdZht have-inculpated the Claimant and hie follow-
                                          PUB X13:35


                                            Award wo. 31

                                            Gees No. 35


employees. The offense for vhiai the Claimant me accused is of such a
 major nature that they rare entitled to confxont and crosa exarine their
 accusors. The Board finds that a written report 3q the Carrier°® Police
 Officer, who did not witness arty of the key eve=tat, is not the equivalent
 of producing witnesses who ewers prfvy to or directly aware of the events
 that could causally link the affected employees to the,incriminating
 events.
 The Hoard ids ttm,t to accuse and find guilty an employee without presenting his accuser, is a denial of basic and fundamental due process, and leaves it with no xeoourse but to vacate the discipline assessed against the Claimant, and to direct the Carrier to rake hire whole.

 Awards - Claim sustained.
 Orders The Carrier is directed to comply with the Award,
 on or before 3 ~ , 1980.
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 ,3aco Sei b=g,`rtatkrsan and Neutral l M &aber
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.. M. Cagier -Member F. T. loyee Member

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