BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
and )
ELGIN, JOLIET AND EASTERN RAILWAY COMPANY )

Martin H. Malin, Chairman & Neutral Member

D. D. Bartholomay, Employee Member

D, M. Gevaudan, Carrier Member


                    Hearing Date: April 20, 2000


STATEMENT OF CLAIM:

      1. The dismissal of Welder F. A. Otto for his alleged violation of Maintenance of

          Way Rules 1.14, 1.15 and Operating Rule 1.9, in connection with a guilty plea and

          conviction on the charge of battery, a Class D Felony, in the Superior Court of

          Lake County Indianan on December 29, 1998, was without just and sufficient

          cause (System File SAC-5-99/UM-4-99).


      2. As a consequence of the violation referred to in Part (1) above, the Claimant shall

          be returned to his welder position immediately


FINDINGS:

 Public Law Board No. 5905, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given due notice of the hearing thereon and did participate therein.

 On January 8, 1999, Carrier notified Claimant to report for an investigation on January 18, 1999, concerning "the charge of violation of M of W Rules 1.14, 1.1 S and Operating Rule 1.9, on December 29, 1998, in the Superior Court of Lake County, Indiana, Criminal Division, you entered a plea of guilty to the charge of Battery, a Class D Felony, and were convicted of this crime." The hearing was held as scheduled. On January 27, 1999, Carrier advised Claimant that he had been found guilty of the charges and had been dismissed from service.

      In Case No. 9, Award No. 8, we upheld Carrier's assessment of sixty demerits against

PL13 5905-~,WJ 9
Claimant for absenteeism resulting from his incarceration. The sixty demerits, combined with Claimant's prior record of sixty demerits resulted in Claimant's dismissal from service. Accordingly, with the dismissal upheld in Case No. 9, Award No. 8, there is no relief that we could award Claimant even if we were to sustain the instant claim. Therefore, the instant claim must be dismissed as moot.

 AWARD

 Claim dismissed.

 D.
 Carrier Member

 Dated at Chicago, Illinois, May 8, 2000.

 Martin H. Malin, Chairman

 D. . artholomay Empl ee Member