Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13146
Docket No. 13005
97-2-95-2-33
The Second Division consisted of the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(International Association of Machinists and
( Aerospace Workers
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
°l. Consolidated Rail Corporation arbitrarily and capriciously
suspended and subsequently dismissed Machinist R. E. Seltzer from
service following trial held on March 30, 1994.
1. Accordingly, Machinist R. E. Seltzer should be immediately
restored to service, paid for all time lost, including overtime, be credited
for any and all fringe benefits that would have accrued had not the unjust
dismissal occurred and have his record cleared of any reference to the
charges."
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
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.
Form 1 Award No. 13146
Page 2 Docket No. 13005
97-2-95-2-33
Until his dismissal Claimant was assigned as a Machinist 'n the Maintenance
Department
of
Carrier's Enola Diesel Terminal. On March 11, 1994, Carrier informed
Claimant that he was removed from service and confirmed that fact in a letter dated
March 14, 1994. On March 16, 1994, Claimant was instructed to appear for a trial in
connection with the following charges:
"1. Conduct unbecoming a Conrail employee, when on December 21,
1993, while on duty and under pay as a Machinist, tour
of
duty 7:00
A.M. to 3:30 P.M., Enola Diesel Terminal, Enola, PA, you were
observed unloading three (3) 55 gallon drums from your private
vehicle and reloading same into a private vehicle owned by L. C.
Flail and filled same with diesel fuel for other than company use
without verbal and/or written permission from your supervisor or
any other person in authority.
2. Conduct unbecoming a Conrail employee, when on December 22,
1993, while on duty and under pay as a Machinist, tour
of
duty 7:00
A.M. to 3:30 P.M., Enola Diesel Terminal, Enola, PA, you were
observed assisting L. C. Flail to fill two (2) 55 gallon drums which
were in the rear
of
a private vehicle owned by L. C. Flail, for other
than company use without verbal and/or written permission from
your supervisor or any other person in authority.
3. Aiding and abetting on the theft and unauthorized removal
of
diesel
fuel from Lucknow Fuel Facility, Harrisburg, PA, on December 21
and 22, 1993, during your tour
of
duty and while under pay as a
Machinist, tour
of
duty 7:00 A.M. to 3:00 P.M., Enola Diesel
Terminal, Enola, PA, when you assisted L. C. Flail as
aforementioned in Charges No. I and No. 2 for personal use and
failed to report the unauthorized removal
of
company material
and/or property to your supervisor or any other person in
authority."
At the outset, the Organization has raised procedural and due process objections
to the investigation concerning the incident at issue. After a careful review
of
the record
before the Board we do not find any basis
of
support for the Organization's contentions.
Form 1 Award No. 13146
Page 3 Docket No. 13005
97-2-95-2-33
With respect to the merits
of
this case, Claimant admitted helping Machinist Flail
remove the drums
of
diesel fuel from Carrier's property, including providing Flail with
a ride to his truck, which he left in the parking lot
of
a shopping center, after filling the
drums with fuel. Claimant clearly showed callous disregard for Carrier's prohibition
against theft by not reporting Flail's misconduct. However, there is no evidence on this
record to suggest that Claimant anticipated or achieved any personal gain from the
incident. Therefore, we do not find that Carrier has borne its burden
of
persuasion with
respect to Charge No. 3. That charge, and all references to it shall be expunged from
Claimant's personal record. However, the remaining charges are sufficiently serious
to justify Carrier's dismissal
of
Claimant.
AWARD
Claim denied, with the exception that Charge 3 shall be expunged from
Claimant's file.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Second Division
Dated at Chicago, Illinois, this 8th day
of
September 1997.