Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8357
SECOND DIVISION Docket No.
8360
2-GTW-FO-'
80
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr., when award was rendered,
system Federation No.
4,
Railway Employer'
Department, A. F. of Lo Ca I. 0.
Parties to Dispute: ~ (Firemen & Oilers)
( Grand Trunk Western Railroad. Company
Dispute: Claim of Employer:
1. That under the current agreement Laborer Pedro A. Ruiz was unjustly
dismissed frarn service of the carrier following hearings held on date
of October
17, 1978.
2, That accordingly the carrier b e ordered to make the aforementioned Pedro
A,, Ruiz whole by restoring him to carrier's service with seniority rights
unimpaired, plus restoration of all holiday, vacation, health and welfare
benefits, pass privileges and all other rights, benefits and/or privileges
that he is entitled to under rules, agreements, custom or law, and
compensated for all lost wages.
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 employer 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.
Claimant contends that Carrier unjustly dismissed him from service as a
consequence of an incident which occurred on October
4, 1978,
wherein Claimant
was "charged with responsibility for violating the provisions of Rule 11(c) of
Carrier's Rules and Regulations by unauthorized possession of and/or removal or
disposal of lumber belonging to the Carrier". According to Claimant, Carrier's
action was arbitrary, capricious, and unjust, and an abuse of managerial discretion,
Claimant also alleges that the investigation of said incident was not conducted
fairly or impartiallf, and that the alleged stolen material was scrap lumber and.
was, therefore, of no value to Carrier. Additionally, Claimant contends that
Carrier had previously authorized other employees to engage in similar activities,
but said employees were not disciplined for their actions.
In light of the grievant's testimony, this Board concludes, without equivocation, that Claimant, at a minimum, conspired with and aided three
(3)
personal
acquaintances in the removal of a quantity of lumber frown Carrier's property on
11.1 1
Form 1
Page
2
Award No.
8357
Docket No.
8360
2-G7.'faT-F O-'
80
the evening of October 4, 1978. Furthermore, by his own admission, Claimant
acknowledged that; (1) it was he who instigated the operation; (2) he did not have
the Carrier's permission to remove said lumber frarn Carrier's property; and
(3)
he was aware that Carrier's permi.ssirn was required in such situations.
Even if one were to believe Claimant s version of this incident in that
he did not know the identity of the occupants of the truck who entered the Carrier's
property and loaded the lumber on the night i n question, this Board cannot condone
the wanton disregard of an employee who would knowingly encourage strangers to
"help themselves" to the Carrier's supplies and who would stand by unchallengiag7,y,
and who, therea2ter, would not report this activity to his supervisors or to the
proper security officers.
As to the matter of the relatively insignificant value of the pilfered
lumber, this contention is baseless since the record clearly demonstrates that the
quantity of lumber which was taken was of some value and some use to the Carrier;
and moreover, since the value of any item is a highly subjective consideration, such
a determination, in itself, does not absolve the wrongdoer of his/her guilt, but may
mitigate the severity of the penalty which ultimately is imposed.
The remaining issue of significance herein is the Claimant's contention
regarding various due process violations which the Carrier is alleged to have
committed during both the investigative and hearing phases of this matter. The
Board has carefully considered this particular contention but cannot find any support
for this charge which would invalidate any of the previous determinations posted
above. Either these due process violations did not occur as the Claimant
contends, or they are of such minor import that they have no influence in the
outcome of this dispute since they do not impeach the weight or credibility of
the evidence which has been proffered by the Carrier.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
semarie Brasch
Administrative Assistant
Dated at Chicago,
Illinois,
this 4th day of June, 1880.