:antics: Brotherhood of Locomotive Lngineers
 and
 :ennsylvania_3eading Seashore Lines
 Statement of Claim: "Appeal of iireman i's. ri. Albertson from discipline
 of dismissal imposed by ~i-32 s,-otice dated May 20,
 1970, the Outline of 'offense reading:


Discussion: The Claimant entered the employ of the Carrier on
 January 30, 1943, and was promoted to Lngineer on December 12, 1958. Since December 28, 1968, he has been restricted to fireman's work as a result of disciplinary sanction imposed upon. him because of his involvement in a collission with another engine. On April 30, 1970. the Carrier received information that the Claimant had been arrested. It thereupon instructed its Captain of Police, ix. Bond, to investigate the matter. Captain Bond's investigation disclosed that on April 29, 1970, at 9:00 Pii, the Claimant had been arrested and charged with committing arson and about 9:140 Pri on the same night, he had been arrested and charged with assault and battery against a police officer. Captain Bond's investigation also disclosed that the Claimant had also been arrested for arson on liay 23, 1966, and that he had beau convicted of that offense and given a suspended sentence of one and one half years .with the provision that he be under the care of a physician.

                                          PLO Io5l0


                      - 2 - Avard r.o. 1


On Aoril 30, 1970, the Carrier, as a result of the information received from Captain pond, sent the claimant a .:otice to report for Trial on .,ay ii, 1970, ' and charged him with
 "Violation of iule 8 (Second Paragraph) current gook of 3,ules for Conducting irarsportation, approximately 9:00 i::, ':;ednesday, April 29, 19'70.` The Trial was held as scheduled, and on .:ay 20, 1977, the Claimant received and signed a form ::-32 :,otice of Discipline which slated that he had been dismissed from the service of the Oarrier as a result of the charges filed ajainst him. The Claimant filed a timely appeal which was processed in accordance with the prescribed procedures, and in light of the fact that the appeal was denied at the several intermediate and final steps of the appeal procedure, the parties agreed to place the matter before this Board. pule L, Second Paragraph, states:

 "To enter or remain in the service, employes must be of good moral character and must conduct themselves at all times, whether on or off Company property, in such manner as not to bring discredit upon the Company. In the course of the appeal on the Claimant's dismissal, the Claimant?s attorney on October 12, 1970, filed a copy of a court record showing that on Yay 6, 1970, the Claimant had been found not guilty by the Court of the charge of assault and battery on April 29, 1970, against the police officer.
          Regulation No. 6, captioned "Disci_3line," of the former iii.c&d

Schedule Agreement, under which the Claimant was tried, states in its relevant parts:
                                          PL 3 la-51o


                        - 3 - Award i~o. 1


          "6-A-2. Any fireman. directed to attend an Investigation or trial will be notified of the place, date and time of the investigation or trial and may be accompanied by the local chairman of his organization, or a representative of his own choosing, who will be permitted to question witnesses and those conducting investigation, or trial, so far as the interests of the fireman are concerned.


          6-A-3. A fireman directed to report for trial will, at that time, be informed in writing of the exact charge for which he is to be tried."


                    Carrier's Position

The Carrier denies that there are any valid bases, procedurally or substantively, for setting aside the discipline imposed upon the Claimant. Concerning the procedural objections, the Carrier concedes that the Hearing Officer might have phrased more felicitously his intention not to answer any questions directed toward him. What the Hearing Officer, however, meant to convey by his poorly formulated statement was that he wanted to avoid the situation of having to testify in a case over which he was presiding. However, the Carrier states that the record does not show that the Claimant's rights to a fair and impartial trial were in any way prejudiced. The Carrier also states that the Organization was in error when it stated that the G-32 Form "Notice of Discipline" was'not properly dated and numbered. The Carrier states that the notice was numbered and dated by the Claimant in his own handwriting. (At the Board hearing on January 6, 1971, the Carrier produced the original Form G-32 showing that it was dated and signed on rtay 20, 1970, by the Claimant).
 Concerning the substantive aspects of this case, the Carrier asserts that the evidence in its possession justified it in charging the

                          - PLG 656


                      - 4 - Award No. 1


Claimant with violating Rule E and when that evidence was adduced at the Trial, coupled with the Claimant's prior service record, it was justified in concluding that the Claimant should be dismissed from its service.
 The evidence of record showed that the Claimant had been arrested, convicted and sentenced in 1966 for the crime of arson. When he was again arrested four years later for the same crime, the Carrier was warranted in initiating disciplinary action against the Claimant and assessing said discipline when its charges were proved. The Carrier was not obliged to wait until the Claimant was tried in a criminal court on the 1970 arson charge. To have done so would have been a dereliction on the part of the Carrier with regard to its responsibilities toward the public, its customers and the Claimant's fellow employees. The Carrier notes that in the 1966 arson charge, the Claimant was arrested on Ray 23, 1966, but he was not sentenced until April 13, 1967· i:oreover, the Carrier states that 1f it had not taken any disciplinary action against the Claimant until after his court trial, there can be no doubt that the Organization would be contending that too couch time had elapsed between the date of the original incident and the initiation of the disciplinary proceeding,.
 The Carrier stresses that the judge who found the Claimant not guilty of assault and battery against the police officer, however, found sufficient cause in the arson charge to bind the Claimant over to the Grand Jury. The Carrier's judgment was that its responsibilities as a common carrier did not permit it to allow the Claimant to remain in its service pending final disposition of the Claimant's criminal charges.

                                        PLfg 651o


                      - 5 - Award luo. 1


The. Carrier stresses that there can be no doubt that the I Claimant was guilty of breaching Rule E. Arson is a serious criminal offense. In these troubled times, the Carrier is beset with problems of vandalism, fires, thefts and the like. It has solicited the assistance and cooperation of police departments in preventing and detecting these offenses. 'here can be no doubt that discredit is brou6ht upon the Carrier when one of its employees is arrested twice by the local police department on the serious charge of arson. This conduct also raises serious questions concerning the Claimant's moral character.
 The Carrier also states that it was no error or breach of due process to introduce and consider the Claimant's prior service record in determining, not his guilt but the appropriate sanction to impose.
 The Claimant's service record shows that he was disciplined for 10 separate incidents. The most serious one occurred in November 1968 when the Claimant, while working as an engineer, collided with a standing engine. This collision resulted in a severe injury to the fireman on the Claimant's engine from which he has never returned to work, and property damage in the amount of ~4j,000. As a result of this collision, the Claimant seas dismissed from service, but because of pleas of leniency advanced by the officials of the BLFB& and the Claimant, he was restored to service, but disqualified from operating an engine.
 The Carrier concludes that both because of his conduct and his past service record, it v,=as justified in dismissing the Claimant from its service.
                                          PLG 6,66


                          - Award r,o. 1


                  Organization's Position

'the UrTganization contends that the ,:arrier erred in discnissinE the 'lai;yant for an unproved charge. The Qr3anizatior. stresses that it has not been proved that the Claimant was guilty of the 1970 charge of arson. An arrest is only a cnar 7a era the ,resent:-ient of a char--e is no proof or evidence of guilt. 'Irne Carrier had no right to assu:e that 'sae Claimant was guilty of the ohar-e in the absence of a deter-iration of Guilt b; a court of competent jurisdiction. :he Carrier has determined that the 3l:=imant 1:as guilty of the 1970 char;e because he was convicted of the same char-a in 1960. however, the Carrier brou.ht the C1 ai:.;ant to Trial on the 1970 charge and that charge has not been proven to date.
 the Organization also contends that the carrier committed several serious procedural errors in its conduct of the 'trial, which of itself requires that the discipline be vacated.
 it was fundamental error for the :fearing Officer to refuse to answer any questions which the Claimant's representative deemed necessary and pertinent to the charGe. 6uch conduct by the Carrier's officer is evidence of prejudice and bias to·:ard the Claimant by denying him a fair and iwpartial trial.
 The Carrier also committed error wrier. the Carrier's hignest officer, in denying the appeal, stated that the Carrier's decision was based on the disciplinary procedure conducted under its i.rorning rules of the 1~arrier's rules and regulations, and not what transpired in a court .)roceedin-'. the Carrier has to be bound by competent evidence and not hearsay. There was nothinz in the Claimant's service record to show any prior violation of Aule ... and 7.t eras pure hearsay that he i.;as guilty thereof in 1970.
                                        PL G 456


                        - 7 - Award too. i


The Organization further contends that the Carrier committed error in holding the Claimant guilty of violating :tule L because the operating rules must be deemed to apply to prohibited acts committed on the Carrier s property which affect the Carrier in the operation of its road, The operating rules may not be construed to oer.:it the Carrier to control or discipline an employee for his conduct while off duty and not on the _errierls property, when such conduct does not directly and adversely affect the Carrier in the operation of its road. To per,ait otherwise, contends the Ort-anization, would be an improper intrusion into the employee's _aersonal rights and life.
 The Crganization denies that the Claimantrs service record warrants his discharge. For an employee with 27 years and 51 months seniority, incurring incidents which imposed 11 days discipline for 10 separate incidents, is not a bad record. There were no prior citations for any violation of Aule L.
 The Carrier acted on charges which arere not proved beyond a reasonable doubt, and therefore the Organization urges this board to set aside the Carrier's unwarranted action.

 Findings: The Board, upon the whole record and all the evidence, finds that
 the employee and Carrier are Zmployee and Carrier within the meaning of the
 3ailway Labor Act, as amended; that the Board has jurisdiction over the dis
 pute, and that the parties to the dispute were given due notice of the hearing
 thereon.
 'She Board must conclude that the evidence of record does not support or uphold the Carrier's dismissal of the Claimant for violating 3ule E.
 The Carrier brought the Claimant to Trial for allegedly violating Rule B on April 29, 7970. The evidence shows that the Claimant was arrested
                                            P L C3 t 5L


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    that right on that charge and that there has been no final disposition of the matter. A charge is not proof and an arrest is not a conviction. The Carrier cannot contend, under our system of jurisprudence, that it has been held up to disrepute because of the arrest of the Claimant. The Carrier must take cognizance of the presumption of innocence which underlies our criminal code. It is particularly not at liberty to disregard this presumption of innocence when dealing with an employee with almost 2V years' seniority, albeit =with a service record, which could not be described as exemplary. Absent a determination of the Claimant's guilt or innocence by a criminal tribunal of competent jurisdiction, the Carrier is not free to treat or regard the Claimant as guilty of committing arson in April 1970, and thus breaching

    . Rule E in that he thus revealed himself to be a person of poor moral character bringing disrepute on the Carrier.

    The Carrier also may not, in 1970, discipline the Claimant for a criminal.act committed in 1966, for breaching Rule Z. In the first place, Rule E cannot be applied retroactively. The Carrier cannot justifiably say in 1970 that the Claimant held it up to discredit or disrepute four years earlier, when. it was totally unaware of the Claimant's misconduct and the matter had not been brought to its attention. The Carrier cannot regard itself as being discredited or shamed by acts unknown to it. Secondly, the Carrier in its I-lay 8, 1970, Notice of Charges filed against the Claimant did not mention the 1966 offense, and consequently it cannot charge and try him for that earlier offense. The Carrier is obligated under the contract in Regulation 6-A-3 to inform the Claimant in writing of the exact charge for which he is to be tried. The charge levelled against the Claimant was that

. P L (3 10 56

                      ' - 9 - Award No. 1


      he breached Rule i3 by his April 29, 1970, arrest. The Carrier therefore is barred from disciplining the Claimant for the 1966 offense since he was not charged in oiriting with this offense.

      In summary, the record discloses no evidence that, the Claimant was :_uilty either of moral turpitude or arson merely because he was charged there·.rith and nothinmore. The 1966 offense is not admissible under the regulation coverninr, discipline, and not admissible because there can be no retroactive application of breaches of Rule ~W. 2here bein= no competent evidence to support the Carriers disciplinary action_ the Board has no reccurse but to vacate the disciolinary sanction.


      AWARD: Claim sustained.


      ORDER: The Carrier is directed to put the A4.=and into effect on


              or before February 26, 1971 .


      ... _._. --- : - Jac denberg, Chairman and i: r :-:err

                                  .

                                    i ,l~


    ?.'. p Skutt, Employee i:ember Y. V . Bigelow, C rier riember


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