Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10538
SECOND DIVISION Docket No. 10446-I
2-B&O-I-CM-'85
The Second Division consisted of the regular members and in
addition Referee Jonathan Klein when award was rendered.
( Kenneth A. Roach
Parties to Dispute:
( Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
Petitioner, Kenneth A. Roach was discharged from services of the
Railroad and request (sic) reinstatement as a Carman, at the Butler
Yard, at Butler, Pennsylvania, because he believes he would be a
trustworthy employee to the railroad, and because he believes that
his experience with the railroad of Thirty-Two Years (32), should
entitle him to consideration for re-employment.
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 employes 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.
On December 30, 1981, the Claimant was charged with his responsibility,
if any, in connection with the unauthorized possession and sale of journal
brass belonging to the Carrier between the dates of June, 1980 and March,
1981. The Claimant received proper notice of the charges, and appeared with
duly accredited representatives of the organization at the investigatory
hearing held on January 20, 1982.
The evidence of record established that Claimant engaged in twenty-nine
(29) unauthorized sales of railroad journal brass to the Fitzsimmons Metal
Company, Inc. of Glenshaw, Pennsylvania. Claimant sold a total of 39,388
pounds of the Carrier's brass for his own personal gain without authority
from the Carrier. The brass sold by the Claimant had a fair market value at
the time of sale of $23,416.67. Claimant admitted that he obtained the
journal brass by removing large amounts of the metal from the shop track in
his personal vehicle.
Form 1 Award
No.
10538
Page 2 Docket No. 10446-I
2-B&O-I-CM-'85
This Board is faced with an appeal by the Claimant based solely on a
claim for leniency. There is no claim that the investigation conducted on the
property was unfair or partial, or that the Carrier failed to prove the
charge of unauthorized possession and sale of journal brass.
No
violation of
the controlling Agreement is asserted by the Claimant.
This Board is without jurisdiction to modify discipline administered by
the Carrier based upon leniency alone. The thirty-two (32) years of service
by Claimant with the railroad cannot insulate him from discipline, including
the severe penalty of dismissal where a serious offense has been committed.
Claimant's long period of employment with the Carrier should have impressed
upon him the seriousness with which theft of property is viewed by the Board.
The theft committed by Claimant was not an isolated incident, but occurred
over a long period of time. Claimants conduct included twenty-nine (29)
separate, unauthorized sales of the journal brass for his personal gain.
The Claimant was properly subject to discipline, and the discipline imposed was
fair, reasonable and based upon sufficient credible evidence of record.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: .01.0 4910004
Nancy ver - Executive Secretary
Dated at Chicago, Illinois, this 11th day of September 1985.