Form 1 NATIONAL RAILROAD ADETUSTMFNT BUARD Award No. 9192
SECUND DIVISION Docket No. 8827
2-SPT-FU-'82
The Second Division consisted of the regular members and in
addition Referee David H. Brown when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That in violation of the current agreement Firemen and Oiler Claude D.
Cravens, was unjustly dismissed from the service of the Carrier on
March 20,
1979
following a hearing held on March
13, 1979.
2. That accordingly, the Carrier be ordered to make the aforementioned
Claude D. Cravens, whole by restoring him to Carrier's service with
seniority rights unimpaired, plus restoration of all holiday, vacation;,
health and welfare benefits and/or privileges that he is entitled to
under rules, agreements, custom or law and compensated for all lost
wages. In addition to money claimed herein, the Carrier shall pay the
Claimant an additional amount of
6%
per annum compounded annually on the
anniversary date of this claim.
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.
C. D. Cravens, Claimant, entered Carrier's service as a laborer on June 17,
194+
and resigned August 25,
1947.
On November 27,
1948,
he again entered Carrier's
service and resigned February 5,
19+9.
On May 12,
1950,
he was rehired.
For approximately a year prior to March
14, 1978,
the Federal Bureau of
Investigation in conjunction with Carrier's Police Department conducted an
investigation into the matter of theft of interstate shipments in Carrier's
Roseville, California Yard.
On March
14, 1978,
law enforcement officers went to Claimant's residence and,
after a consent to search, recovered many and various items of interstate merchandise
and Company property. Claimant, a forklift operator, in a voluntary statement,
admitted theft of items from boxcars consigned in interstate shipments and Southern
Pacific Company property, which were removed during his working hours at One Spot
in the Roseville Yard.
_. ._ ~ ,
Form 1 Award No. 9192
Page 2 Docket No. 8827
2-SPT-FU-'82
On January
3,
1979, Claimant was indicted by the Federal Grand Jury on charge
of one (1) count of Violation of Title 18, United States Code, Section 659,
"Theft from Interstate Shipment". On January 12, 1979, he appeared in Federal
Court and plead not guilty to charge of Theft from Interstate Shipment. On March
9 following, Mr. Cravens was found guilty as charged and was sentenced to
imprisonment for one year with sentence suspended during a probationary period of
five years. He was also fined $1,000.00.
During all of this time Claimant continued to work for Carrier. On March 7,
1979, Claimant was cited as follows:
"You are hereby notified to be present at the Office of
Terminal Superintendent, 6th and Vernon Streets, Roseville,
California, March
13,
1979 at 9:OOAM for formal hearing to
establish the facts and place responsibility, if any, in
connection with your alleged misappropriation of merchandise
and/or Company property on or before March
14,
1978 which may
be in violation of General Rule 801 of the Southern Pacific
Transportation Company reading:
'Employees will not be retained in service who are
... dishonest ... or who conduct themselves in a
manner which subject the railroad to criticism.
Any act of hostility, misconduct or wilfull
disregard or negligence affecting the interest
of the Company is sufficient cause for dismissal
and must be reported.'
You are entitled to representation in accordance with your
agreement and to bring to the hearing such wintesses as you
may desire."
The investigation was held as scheduled, and Claimant freely admitted his
guilt, however, his union representative objected to the untimeliness of the hearing
in view of the requirement of Rule
33
of the applicable schedule which reads in
cited part as follows:
DISCIPLINE - SUSPENSION - DISMISSAL
"(a) No employee shall be disciplined or dismissed without a
fair hearing by the proper officer of the Company. Suspension
in proper cases pending a hearing which shall be prompt, shall
not be deemed a violation of this rule."
Carrier explained that its responsible officers did not receive the official
report of the joint investigation as it pertained to Claimant until March
6,
1979,
whereupon it did act with promptness. The total investigation involved several
employes.
We find that under the circumstances Carrier did act with reasonable promptness.
Carrier had no duty to hold a hearing exploring Claimant's possible culpability -
F orm 1
Page
3
Award No. 9192
Docket No. 8827
2-SPT-FO-'82
until the FBI probes and ensuing prosecution were complete. Further, Claimant
suffered no harm because of the time factor. To the contrary, he held his job for
a year longer than would otherwise have been the case.
We further find no merit to the Union's argument that the notice of
investigation was not sufficiently specific.
Claimant's guilt was established in a fair and proper investigation which
was free of procedural error. His termination was fully warranted.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
~,.o8emarie Brasch - Administrative Assistant
Date($`~at Chicago, Illinois, this 22nd day of July, 19820