Chicago anal Nbrth Western Transportation Comp


"41) The the (30) day suspension of Track IbCarlos E3izondo

 was without just and sufficient cause anal wholly to the alleged offense. (Carrier Me D-11-238)

 "(2) Trae; Forexsan z. .tondo be compensated for alb. time lost and the
 discipline be stricken frown his record."
 OPIMN O F BDARDs
 On the night of August 30, 1977, Claimant eras assigned, along with lfr. Manuel C. Medina., to guard certain Carrier equipment. Both esiployees had worked a full shirt from ?s30 a.m. to 5:30 p.m. that day but they came back at the direction of fioattxaster Larson to guard the equipment from 9:00 p.m. to 2 s00 am. the next day. During the course of that fig, at about 1Q s30 p.a.jr Mr. Medina :fixed his automaatic pistol. at some trespassers. Medina's actions resulted in the arrest of himself and Claimant by Chicago police. The details of that incident are described in our Award No. ltlc.
 Carrier's Police Departaent received a report of the incident and releyed the inforaation to :~oa&aster Larson. Both Larson and Carrier Police Lieutenant tees went to the police station and talked with the employees: after which Larson bailed out Claimant Elizondo. The next day, Following further

 AWARD No. 45

 w.

 disproportionate
 convrsatns with Q int, Carrier served hin with a t1otice of Investigation into the follo

 "Your responsbi:.ity in connection for violation of PjAe G anal
 elation o:' e 7 of the General Rations and. Safety tees
 on t 31, 1977, 12 14a A.M. at Des Plaines and Grand Avenues,
 Chicago, Illinois." a
 The tees referenced in the Notice read as follows:






F:nle 7:
 "Employes are prohibited from being careless of the safety of them
 selves or others,, disloyal, insubordinate, dishonest, i=oral,
 gruelsome or otherwise vicious or conducting themselves in such a
 manner that the railroad will be subjected to criticism and. ? nsa
 of good will, or not meeting their personal obligations."
 Follow the investigation want eras found qty as charged and assessed
 discip of thirty days t suspension wilt pay.
 The severity of the penalty and the propriety of the investigation
 both are challenged herein but are not found fatally defective. Hovever, in
 addition to those two elements Carrier bears the burden of proving by substan
 tial persuasive evidence on the record that the employe was culpable of the
 offenses charged,, i.e..# that he is deserving of some discipline. Failure of
 proof on that essential point renders any disciplinex however "lenient'" null.

 and Void. See Awards 3-1321, 3-132o6,r ;s-U479. In our considered ~udgaent

 Carrier in this case has failed utterly to adduce convincing evidence that

 MAimant violaited either Rule G or ante 7 on August 30.- 1.977.


-on the night of the arrest conceded that they could not term under oath that

 he was under the influence of alcohol. The entire case against Claimant on
that point patently consists of the alleged hearsay conversation between the
 west officer tend Carrier witness Grimes, regarding officerts impres-
 sions at the time of the arrest. Claimant's admission that he had two or three
 beers with his dinner prior to coming back on duty does not establish that he
 was in violation of RiAe G.
 As for the alleged violations of Rule ?, there is even less persuasive evidence. 'Me record shows that Claimant remained in his automobile from 9 sOQ p.m. until he and Hedina, were arrested at appro~tely might. He heard Medina's gunfire but had no part in it. Apparently he was the first to be arrested at the sceno and the arrest officers at first thought Maimant had the gun. He was not informed at the scene of then arrest nor afterwards uby he was being arrested. If, under those circumstances, Claimant was t'uncooperative and disoriented" his behavior was in our judgment normal and understandable. Fbr Carrier to impose any .discipline at all. on the basis of the evidence on this record is arbitrary, unreasonable and capricious. The claim is sustained. See Awards 3 1£:166, 3-1?228, and 3 37314. PI1MING-S:


dence.. finds and holds as follows:
 1. That the Carrier and Employee involved in this dispute stay res
 pcwetivelp Carrier and EVloyee wig the me of the Railway Labor Act;
 ' 2. that the Hoard has jurisdiction over the dispute involved herein; sad
Clain tamed.Carrier is directed to comply with this Award
wig thixtp days of issuance.
Dana E. Eischeu_ Chaz.

Fi. G. Harper, Bmplojr~# Member

 R. try. Schmiege,, Carrier Hember

1,72-112-72 .