Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10622
SECOND DIVISION Locket No. 10757
2-SP-MA-'85
The Second Division consisted of the regular members and in
addition Referee Leonard K. Hall when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Parties to Dispute:
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That, the Carrier improperly dismissed Machinist M. A. Salazar
(hereinafter referred to as Claimant) from service on September 15,
1983.
2. That, accordingly, the Carrier be ordered to restore Claimant to
service with seniority and service rights unimpaired with com
pensation for all wage loss.
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.
The Claimant was employed as a Machinist in the Carrier's Traction Motor
Shop, Sacramento Locomotive"Works, 3:00 PM to 11:00 PM on July 25, 1983, the
date of the occurrence involved in this dispute.
At about 10:00 PM on that date he was observed in the Carrier's
Electrical Shop by a Patrolman of the Carrier's Police Department removing
copper electrical wire from a cable storage drum. At the time of the
confrontation the
Patrolman saw two rolls of cable on the floor, one secured
with a bundle tie and one unused bundle tie on the floor. On top of one roll
of cable was a hack saw and fresh copper filings were on the floor near the
roll.
The Patrolman asked and received permission to search and secure the
Claimant's automobile parked close by. A roll of copper was discovered in
the trunk of the automobile.
Form 1 Award
No.
10622
Page 2 Docket
No. 10757
2-SP-MA-'85
On July
29, 1983
the Claimant was notified to be present for formal
hearing in connection with his alleged absence from his post of duty without
permission at approximately 10:00 PM,
July
25, 1983,
alleged dishonesty in
being observed removing electric cable from a storage drum and having a roll
of cable in the trunk of his automobile.
When the hearing convened, the Claimant was not present but about midway
he appeared. He was given benefit of the proceedings prior to his arrival
and opportunity to ask questions in regard thereto.
In the ensuing developments he admitted that he considered removing the
cable, would have tried to sell it and with the money pay for the support of
his chemical dependency habit.
On
September
15, 1983,
the Claimant was notified of his dismissal for
absenting himself from his post of duty without proper authority, removing
and having in his possession electric cable from the Electrical Shop in
violation of Rules 801 and 810, General Rules and Regulations of the Southern
Pacific Transportation Company.
Rule
810
requires employes to remain at their post of duty and devote
themselves exclusively to their duties during their tour of duty.
Rule
801
provides a prohibition against dishonesty.
The thrust of the Organization's position is twofold. One, that the
Claimant was not in possession of all of his faculties due to chemical
dependency, that the Carrier's employe assistance program so recognizes and
that the Claimant was not responsible for his actions this contention must be
rejected. The position was not joined on the property. At this juncture it
is appropriate to note, however, that the Patrolman's testimony was that the
Claimant's response was coherent and one of surprise at the time of confrontation, which means that the Claimant knew what he was doing.
The other, that the Claimant did not remove any of the material from the
Carrier's property and, therefore, was not guilty of removing and having in
his possession cable from the Electrical Shop must be rejected. We know from
the evidence in the Transcript of the hearing that the Claimant's assignment
was in the Traction Motor Shop and that the Foreman did not send the Claimant
to the Electrical Shop. He was there under questionable circumstances which
turned out to be that he was removing copper cable from a storage drum and
had a roll of it in the trunk of his automobile. That he had not removed it
from Company property is of no consequence.
Form 1 Award
No.
10622
Page 3 Locket No. 10757
2-SP-MA-'85
A similar position was advanced in the dispute heard in Second Division
Award
No.
7768. There the Board held:
"The Organization takes the position that the Claimant
could not be charged with stealing because he did not
leave Carrier's property. The Carrier need not show
that the Claimant left the property to prove theft or
intent to steal. The Carrier need only show substantial
evidence of Claimant's intent to convert this property
to his own control, use or possession
...."
The Claimant had Company property in his possession, and was intending
to sell it to support his chemical dependency habit; he so admitted.
The Claimant admitted all of the material elements of the charges
against him. Even if the Carrier had failed in its proof, which is not the
fact, the admission removed the necessity of proof of the charges. The claim
will be denied in its entirety.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy ver -.Executive Secretary
Dated at Chicago, Illinois, this 23rd day of October, 1985