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 :.' xt·`00.CIAt ADJUSTMENT BOARb`N0-`947
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                                Case No. 59


PARTIES Brotherhood of Maintenance of Way Employes
 To and
 DISPUTE Southern Pacific Transportation Company (Western
 Lines)
 STATEMENT That the Carrier's decision to suspend
 OF CLAIM Claimant from its service for a period of
 ninety (90) days was excessive, unduly harsh
 and in abuse of discretion, and in violation
 of the terms and provisions of the current
 Collective Bargaining Agreement.
 That because of the Carrier's failure to
 sustain and support the charges by
 introduction of substantial bona fide evidence
 that the Carrier now be required to compensate
 Claimant for all loss of earnings he suffered,
 and that the charges be removed from his
 record.

    FINDINGS


    Upon reviewing the record, as submitted, I find that the Parties herein are Carrier and Employes within the meaning of the Railway Labor Act, as amended, and that this Special Board of Adjustment is `duly coti'stituted and has jurisdiction of the Parties and the subject matter; with this arbitrator being sole signatory.


    The Claimant: has been employed by the Carrier since July 19, 1976. On Juno 9, 1987, he was taken into custody by the Mt.

                      ~2 F.xla ri 'E.1 .. D. ~°


·*
            Mt. Shasta Pal ba bepar'tinent and, subsequently C~arqred with violating Section 288(a) of the California Penal Code. The charge stemmed from his sexual conduct with the five (5) year old daughter of his fiance. The Employe admitted the occurrence and voluntarily entered into couseling.

                The Carrier was aware of the charge, but did not set up an

' investigation until November 18, 1987. The Carrier requested
 the Claimant appear at the formal hearing, which was actually
 held on November 23, 1987. The purpose of the hearing was to
 . determine whether or not the Claimant was responsible for
 - violating:

 ' Rule 607: CONDUCT: Employes must not be:
 . (5) immoral

 .t
            The Claimant was notified by letter dated November 30, 1987, that he would be suspended for ninety (90) days effective December 1, 1987 through February 28, 1988.

            The Board believes the Carrier had the right and the obligation to have had some assurance in this matter that the Claimant had sufficient time to complete his period of incarceration and to obtain essential psychological therapy before returning;. to work. The Employe, in this case, confessed to having had sexual conduct with the five (5) year old girl. The offense is serious enough to warrant a lengthy suspension. The suspension was not only an appropriate one, but it allowed the Claimant sufficient time to serve his Court imposed sentence while still protecting his employment and it allowed the Carrier


N.

 ;,,: 2
 ~~3.'~sd ,.to ~`va~;pate the Claimant's prc'ordes ~h<tberapy·;
The Hoard,recognizes that an officer of th'e"Cgrrier conversed with the Claimant's attorney, Mr. Hintz, sometime around November 16, 1987. According to a follow-up letter from the attorney, there appeared to be some desire on the part of the Claimant to offset this suspension time by the utilization of his available vacation time. If that was indeed the request of the Claimant it should have been allowed.

 9'I 7-5-q
AWARD
The Claim is denied, except that, if the Claimant requested or requests the use of available vacation time to offset some of his suspension time 3t should be granted in this case.

 Submitted:

 February 2, 198 :. Denver, Colorado<:,

 Carol Vgq6rin, Neutral