Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9524
SECOND DIVISICN Docket No. 9542
2-CR-FO-183
The Second Division consisted of the regular members and in
addition Referee David P. Twomey when award was rendered.
International Brotherhood of Firemen & Oilers
Parties to Dispute:
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That, in violation of the current agreement, Laborer Paul E. Fisher was
unjustly dismissed from service of the Carrier following trial held in
absentia on April 25,°1980.
2. That, accordingly, the Carrier be ordered to make the aforementimzed Paul
E. Fisher whole by restoring him to Carrier's service, with seniority
rights unimpaired, made whole for all vacation rights, holidays, sick
leave benefits, and all other benefits that are a condition of employment
unimpaired, and compensated for all lost time plus ten (10%) percent
interest annually on all lost wages, also reimbursement for all losses
sustained account of coverage under health and welfare and life
insurance agreements during the time he has been 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.
The Claimant, Mr. Paul E. Fisher, was employed as a Laborer-Fuel Truck
Operator at the Carrier's Beacon Park Engine House, Allston, Massachusetts.
On March 22,
1980,
the Carrier sent a notice to Mr. Fisher that effective March
21,
1980,
he was removed from service. On March
25, 1980,
the Carrier sent a
directive to Mr. Fisher instructing him to appear for a trial at South Station,
Boston, Massachusetts, April
8, 1980;
however, the trial was postponed at the
request of the Claimant's representative, and rescheduled for April 25,
1980.
The charge set forth in the March 25,
1980
directive was:
"In connection with the unauthorized removal and theft of
company property when on Friday, March 21,
1980
you were
apprehended by Conrail police at approximately 11:30 P.m.
at 563 Arsenal Street, Watertown, Mass. for transferring
#2 fuel oil to a privately owned truck from a company
truck."
Fo « 1
Page 2
Award No. 9524
Docket No. 9542
2-CR-FO-183
The trial was held as scheduled, and on May
16, 1980,
Mr. Fisher was advised
by the Carrier that he was immediately dismissed from Carrier service. The
Organization's contention that the trial did not begin within thirty calendar
days from the date Carrier has knowledge of involvement is rejected, since it was
the Claimant's representative who requested the postponement under Rule 20(d).
We have studied the transcript of the trial, the record of the handling of this
matter on the property and the submissions of the parties before this Board, and
we are compelled to find that substantial evidence of record supports the
Carrier's determination that Mr. Fisher was guilty of the above set forth charge.
The testimony of Conrail Police Officers Kervin, Bowes, Pizzi, Esposito and
Hartford clearly indicates that Mr. Fisher transferred fuel oil from a Conrail
fuel truck to a privately owned fuel truck without permission. Theft is a most
serious matter. We find that dismissal was appropriate. The claim is denied.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
sarie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 15th day of June, 1983.