Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.8717
 SECOND DIVISION Docket No. 8821
 2-CR-EW-181
 The Second Division consisted of the regular members and in
 addition Referee Gilbert H. Vernon when award was rendered.
 ( International Brotherhood of Electrical Workers
 Parties to Dispute:
 ( Consolidated Rail Corporation

 Dispute Claim of Employes:_-











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.

At the time of dismissal, Claimant was employed as a Communication Maintainer with approximately 4 and one-half years seniority.

 Under date of July 27, 1979, the C1a imant was notified that he was being held out of service in connection with "the unauthorized possession or removal or disposal of any material from railroad property or property served by the railroad". Under date of August .8, 1979, the Claimant: was notified to appear at a disciplinary trial. The notice was issued in connection the following charge:
Form 1 Award No. 8717
 Page 2 Docket No. 8821
 2-CR-EW-181

The trial was held as scheduled and Claimant was dismissed as a result effective August 31, 1979, by letter that date.

 During the trial, in their submission and before the Board, the Organization makes the following arguments in the Claimant's defense:









The carrier argues simply and straightforth that the evidence establishes without doubt that the Claimant was guilty of a Rule L, Paragraph 3 violation in connection with the unauthorized possession of company property. In support of their position, they direct the Board's attention to 1) the aforementioned statement in which the Claimant admits lie did not have permission to appropriate the materials in question, 2) the Claimant's admissions during the trial and 3) the fact that Claimant appeared before a local judge and pled guilty to a charge of Petty Larceny. In court, he was sentenced to a conditional discharge and was ordered to make restitution in the amount of 735.00. The Carrier further argues that in no way can dismissal be considered excessive in light of the extreme seriousness of the charges against the Claimant.

 In reviewing the record, it is the Board's conclusion that none of the arguments made by the Organization are sufficient to overcome the prima facia case established by the Carrier.

 In regard to the argument that the Claimant was improperly withheld from service pending the trial, we find no foundation. Rule 6-A-1(b) reads as follows:

The Organization argues that on July 27, 1979, the Claimant was not "detrimental" to the Carrier, himself or any other employee. However, there is no doubt in the Board's mind that theft is a major offense and further that the retention of an
 Form 1 Award No. 8717
 Page 3 Docket No. 8821
 2-CR-EW-'81

 employee suspected of theft pending trial would be "detrimental" to the Carrier's interests. There is no reason to believe that Rule 6-A-1(b) would require the Carrier to risk its property to further and potential theft when they have probable cause to believe theft has previously occurred.

 The Organization also asserts that the discharge is discriminatory because another employee was involved but was not charged or disciplined. They argue the Carrier was engaged in a "vendetta" against the Claimant. The Board finds no support for this assertion; The only evidence that another employee was involved was an assertion to that effect by the Claimant in his testimony. This is wholely insufficient to support the Organization's charge of discriminatory treatment against the Claimant. To support such an assertion the other employee's guilt would have to be clearly established. Even then it would. not alter the Claimant's responsibility. The defense could only go to the issue of disparate treatment under similar circumstances such as similarities in responsibility, guilt and past record. However, there is no such evidence presented in any of these respects.

 The Organization argued that the seriousness of the charge should be mitigated because the items in question were essentially valueless. They contend, "The ties and crossarms were of no value and the Carrier normally gives them away or will burn them on the right of way." This contention, in the opinion of the Board, is contrary to the facts contained in the record. Captain Esposito testified that the ties were new and valued at $15.00 per piece and that the crossarms were valued at $50 per piece, a total of $735.00. This also happened to be the same amount for which the Claimant was ordered to make restitution in court.

 Of the Organization's arguments, the most compelling was that the evidence contained in the Claimant's written statement should be held inadmissable because it was taken without a union representative present. However, in reviewing the circumstances surrounding the taking of the statement we find the Claimant's right to due process was sufficiently respected. There is no evidence that he requested that a union representative be present and further, without going into all the details, the Claimant, in the signing of the statement, acknowledged effectively that his rights to legal representation had been voluntarily waived.

 The Board also wishes to note that even if the statement was held inadmissable, there is sufficient evidence in the trial transcript other than the statement: to uphold the Carrier's finding of guilt. In addition to the clear and unarguable admissions of guilt in the statement, the Board observes the following testimony elicited during the trial:








Form 1 Award No. 8717
 page 4 Docket No. 8821
 2-CR-EW-'81
 d The crossarms during my daily work chores, if I have
 to climb a pole and take down, to repair the top
 arm, my orders were to take down the two remaining
 arms that were on the pole and usually two -- there
 may have been one or two, depending on which pole you
 went up and these poles were of little value and these
 crossarms were of little value and they are no good to
 use again.
 So, those are the crossarms that I had taken.






















The above testimony leaves no doubt in the Board's mind as to the Claimant's guilt. As for the Organization's argument that when the claimant's personal problems are taken into account, dismissal is excessive, we also must reject it. In doing so we are mindful of the Board's comments in Award 7570 when Referee Wallace stated:
Form 1 Award No. 8717
 page 5 Docket No. 8821
 2-CR-EW- 81
 "honest employees, and has no obligation to retain in its
 service those, who by their own admission, are not."
 A WAR D




Attest: Executive Secretary
 National Railroad Adjustment Board

 By
 Rosemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 6th day of May, 1981.