The Second Division consisted of the regular members and =n addition Referee James E. Yost when award was rendered.
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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 were given due notice of hearing thereon.
Claimant was employed as an Equipment Technician in Carrier's Communication Department headquartered at Flint, Michigan, with a service date of May 9, 1968. He was assigned to work 8:00 AM to 4:30 PM, Monday through Friday to make repairs and perform routine maintenance in territory extending from Battle Creek, Michigan,
Port Huron, Michigan, using an assigned company vehicle. While servicing the territory, Claimant was required to keep in contact with the Battle Creek Test Center, which relayed assignments and/or messages to him.
On August 21, 1992, Claimant left his headquarters point in a private vehicle at approximately 9:30 AM. Supervision was unable to reach him during the day and the Test Center had no record of him calling in.
On August 27, 1992, Claimant reported for duty 35 minutes late and left his headquarters at 9:00 AM in his assigned vehicle. He was later observed speeding and driving in a careless manner. 3e performed work for two hours at Port Huron, :Michigan, and thereafter was observed going to two restaurants, a grocer-; store and a private residence. He returned to headquarters at -x:00 :.'·t and left for the day at 4:05 PM.
On August 28, 1992, Claimant reported 10 minutes late for work and left his headquarters in his assigned company vehicle at 9:42 AM. Again he was observed speeding and driving in a careless manner. He was observed visiting a car dealership in Dearborn, Michigan, for a considerable period of time and did not return t. headquarters until 4:40 PM.
Claimant submitted his time sheet to payroll showing he worked 8 hours on August 21, 27 and 28, 1992.
On August 31, 1992, Claimant backed a company truck he was operating into a ditch causing it to turn over on its side doing considerable damage.
Notice of investigation was issued to Claimant September =. 1992, reading: Form 1 Award No. 12935
Appeal of Claimant's dismissal was filed by the Organization and handled to a conclusion on the property in accordance with the Controlling Agreement. Failing to obtain satisfactory resolution, the Organization filed an appeal with this Board for adjudication.
This Board has reviewed the Investigation transcript and can find no foundation for the allegation that claimant was not afforded a fair and impartial Investigation. This is so because
the record reveals Carrier issued precise charges against Claimant and afforded him sufficient time to prepare a defense, obtain witnesses and representation. Claimant was present at the Investigation and represented by representative of his choice. Both were afforded full opportunity to present statements, evidence and cross-examine Carrier witnesses.
Pursuant to study of the voluminous investigation transcript and exhibits, this Board is persuaded that Carrier adduced substantial evidence in support of its charges numbered 1, 2, 3, 4 and 6. In dealing with the question of what constitutes substantial evidence, this Board stated in Second Division Award 11627:
In an effort to overcome the charge of falsification of payroll, Claimant and the Organization argued that Claimant was using comp time. Claimant's supervisor testified that he did not have a policy of comp time, i.e, time off for overtime worked. Claimant in turn submitted a statement from an Equipment Technician employed at Edwardsburg, Michigan, reading:
The gravamen of this argument is that even accepting the argument that comp time existed, Claimant is still guilty of falsifying his payroll for the simple reason that no evidence was presented to show that Claimant made or attempted to make arrangements with proper authority to take comp time. In fact, we note in the Investigation transcript Claimant's admission that :ze did not arrange with supervision to take comp time.
Falsifying a payroll constitutes theft and no employer can be expected to tolerate it. Employees who engage in theft of any kind do so at their own peril. Standing alone, theft is a dismissible offense.
Having determined that Carrier adduced substantial evidence to support its charges, we turn to review of the discipline imposed. This Board cannot interfere with the discipline assessed by Carrier unless it finds it to be unreasonable, arbitrary or capricious. In the instant case, we can make no such finding because of the substantial evidence supporting charges numbered 1, 2, 3, 4 and 6, coupled with Claimant's prior discipline record covered by PLB 3313, Docket No. 1, and PLB 4683, Case No. 1, leaves no opening for the Board to interfere with Carrier's assessment of dismissal from service.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.