Form 1 NATIONAL RAILROAD ADJUSTMENT. BOARD Award No.
71+2
SECOND DIVISION Docket No.
6955
2-BNI-CM-'
76
The Second Division consisted of
the
regular members and in
addition Referee Joseph A. Sickles wren award was rendered.
( System Federation No.
7,
Railway Employee'
( Department, A. F. of L. - C. I. 0.
Parties: to Dispute: ( (Carmen)
( Burlington Northern Inc.
Dispute: Claim of Employer:
1. That the Burlington Northern Inc. improperly and unjustly
dismissed Car Inspector M. J. Maiers, Denver, Colorado, from
service for alleged theft, burglary and conspiracy, and for failure
to protect his assignment as Car Inspector.
2. That accordingly, the Burlington Northern Inc. be required to
reinstate Car Inspector M. J. Maiers to service with seniority,
vacation, pass rights and job protection benefits; that Carrier
pay the premiums for hospital, surgical, medical and life insurance
benefits for all time withheld from service; that Claimant be
compensated eight
(8)
hours per each work day, commencing on
September
5, 197?.
and continuing until reinstated to service, and
restore all other, benefits accruing other employee in active
service during period of dismissal.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as approved June
21, 193+.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon
Claimant was charged with theft, burglary and conspiracy, as well as
a failure to protect his assignment on August 21,
1973.
All of the above
arose as a result of his asserted complicity (along with two employees of
the Colorado and Southern Railway Company) in the theft of thirty-three
(33)
boxes of frozen turkeys from a mechanical refrigerator car.
Form 1
Page 2
Award
No-7142
Docket No.
6955
2-BNI-CM-'
7r
Subsequent to investigation, Claimant was dismissed from service.
This Board is of the view that the Carrier presented substantive
evidence, at the investigation, to show that claimant did not protect his
assignment on August
21, 1973,
and that claimant was guilty of theft. Not
only was the bulk of testimony presented by Carrier's witnesses unchallenged,
claimant refused to answer pertinent questions directed to him concerning
the theft allegations. Such a failure to respond does raise certain inferences
in a fact-finding investigation, inasmuch as accused employees are expected
to answer questions in disciplinary investigations. See Second Division
Award
4749
and Third Division Award
19558.
It is noted that the disputes of the two employees of the Colorado
and Southern Railway Company were heard by Public Law Board
No. 169.
In
that Board's Award No.
5,
their claim was denied.
As
in that cask we find
no basis for setting aside the discipline imposed.
AWARD
Claim.denied.
y .
NATIONAL RAILROAD
ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary ,
National Railroad Adjustment Board
Brie Brasch~-Administrative Assistan
Dated at Chicago, Illinois, this 15th day of October,
1976.