Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7562
SECOND DIVISION Docket No.
7478
2-S Pr-FO-'78
The Second Division consisted of the regular members and in
addition Referee James
F.
Scearce when award was rendered.
( System Federation No. 114, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Firemen & Oilers)
(
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That under the current agreement Firemen and Oiler, J. J. Jarone,
was unjustly suspended on February 10,
1976,
and dismissed from
the service of the Carrier, on April
29, 1976,
following an
unfair and improper hearing.
2.
That accordingly, the Carrier be order to:
(a) Restore the aforesaid employee to service with all service
and seniority rights unimpaired, compensate him for all time
lost and with payment of
6°%o
interest added thereto.
(b) Reinstate all vacation rights to the aforesaid employee.
(c) Pay employee's group medical insurance contributions,
including group medical disability, dependents' hospital,
surgical and medical and death benefits premiums for all time
that the aforesaid employee is held out of service.
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,
1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
For sometime prior to the incident involving the Claimant for which
he was suspended and subsequently dismissed, the Carrier had experienced
thefts of liquor shipped from its Roseville, California, terminal to its
San Jose, California, terminal. To stop such thefts, the Carrier preapred
a shipment of liquor in a special railroad car with certain security measures
in order to track movement around the car and the movement of cases of the
Form 1 Award No.
7562
Page
2
Docket No.
7478
2-spr-FO-'78
liquor after the shipment arrived at the San Jose facility. Such measures
entailed placement of devices on the car that would permit data on ingress
and egress from the car. Television monitoring devices were placed to
permit observation of movement in and around the car. In addition, the floor
of the car was treated with a mixture of light oil and copper dusting powder
and a fine oak ash to provide special evidence on the shoes and clothes of
such entry. In addition, the seal number on the door was recorded and was
checked periodically to ensure against tampering or alteration. On February
9, 1976,
the car containing the special liquor shipment was in place at a
pre-determined, observable vantage point in tie San Jose yard. At 11:20 a.m.
a routine seal inspection indicated that the car had a different seal on it
than was originally used. At about
2:00
p.m. a white pickup was observed
near the car. The occupants of the truck were moving something from a
rail car thought to be empty located on the track adjacent to the car
containing the liquor. A 4 X
8
sheet of plywood was placed over the
objects. The truck was intercepted and eight cases of liquor were found
in the bed; this liquor was checked against the bill of lading for the
liquor shipment and found to be part of that shipment. Additionally, voids
were found in the liquor stack where cases had been. The security officials
asked the Claimant and his accom?olice for permission to search the truck and
were permitted to do so; they found one unused car seal and a glove which
appeared to have the compound used to treat the car containing the liquor.
The Claimant was suspended from service on February 10,
1976.
Investigation and hearings were held on February
26, 1976
and April 12,
1976.
The Claimant was dismissed from service on April
29, 1976.
The
Organization contends that he was unjustly suspended and dismissed in
violation of controlling agreements; that the Claimant and a fellow employee
had found the liquor in an empty freight car and were endeavoring to turn it
in to the yard office.
The record supports the disciplinary action by the Carrier. While
certain parts of the evidence adduced in the record are circumstantial, the
network of toroof is so interconnected as to establish beyond a reasonable
doubt that the Carrier has brought action against the culpable party.
The Organization's key defense is that the Claimant and his accomplice
were endeavoring to return the liquor to the yard office, and yet they
passed up an opportunity enroute from the location of the car containing the
liquor to do so; they then drove a circuitous route with the apparent intent
of eluding the security officer and when finally encountered and asked what
was in the rear of the truck, did not mention the liquor. Carrier acted
properly in enforcing Rule 801, which reads, in part: "Employees will not
be retained in the service who axe ... dishonest ..."
Form 1
Page
3
Claim is denied.
Attest: Executive Secretary
Award No.
7562
Docket No.
7478
2-SPr-FO-t78
A W A R D
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
National Railroad Adjustment Board
By
-t· _ , ``~ -~ ~'x-----C
L--'
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 16th day of June,
1978.