Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13149
Docket No. 13010
97-2-95-2-30
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:
"I. Consolidated Rail Corporation arbitrarily and capriciously
suspended and subsequently dismissed Machinist T. J. Breach from service
following trial held on March 29, 1994.
2. Accordingly, Machinist T. J. Breach 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. 13149
Page 2 Docket No. 13010
97-2-95-2-30
Until his dismissal Claimant was assigned as a Machinist in 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 February 17,
1994, 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 filling two (2) 55 gallon drums on the rear
of
your personal
vehicle with diesel fuel and then removing same from Conrail
property without written and/or verbal permission from your
supervisor or any other person in charge and transporting the two
(2) 55 gallon drums filled with diesel fuel to Halifax, PA, and
returning same to Enola Diesel Terminal, Enola, PA.
2. Aiding and abetting in the theft and unlawful removal
of
diesel fuel
oil as follows:
- On August 18, 1993, you were observed assisting L. C. Flail
to load and fill two (2) 55 gallon drums with diesel fuel which
were on the back
of
R W. Hatten's personal pick up truck at
Lucknow Fuel Facility, Harrisburg, PA, without verbal
and/or written permission from your supervisor or any other
person in authority.
- On August 19, 1993, you were observed assisting L. C. Flail
to load and 611 two (2) 55 gallon drums with diesel fuel which
were on the back
of
R W. Hatten's personal pick up truck at
Lucknow Fuel Facility, Harrisburg, PA, without verbal
and/or written permission from your supervisor or any other
person in authority.
- On October 22,1993, you were observed assisting L. C. Flail
to load and fill two (2) 55 gallon drums with diesel fuel in the
back
of
his personal pick up truck at Lucknow Fuel Facility,
Harrisburg, PA, without verbal and/or written permission
from your supervisor or any other person in authority.
Form 1 Award No. 13149
Page 3 Docket No. 13010
97-2-95-2-30
- On February 17,1994, you were observed assisting L. C. Flail
to load and fill two (2) 55 gallon drums with diesel fuel in the
back
of
his personal pick up truck at Lucknow Fuel Facility,
Harrisburg, PA, without verbal and/or written permission
from your supervisor or any other person in authority.
- On February 18,1994, you were observed assisting L. C. Flail
to load and
rill
two (2) 55 gallon drums with diesel fuel in the
back
of
his personal pick up truck at Lucknow Fuel Facility,
Harrisburg, PA, without verbal and/or written permission
from your supervisor or any other person in authority.
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. The fuel oil was subsequently
removed from Carrier property for private personal use without written
and/or verbal permission
of
your supervisor and you failed to notify 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.
With respect to the merits of the case, Claimant admitted to removing fuel from
Carrier's property and converting it to his own and others' private use. Accordingly, the
Board finds that the Carrier has met its burden of persuasion with respect to all the
charges.
AWARD
Claim denied.
Form 1 Award No. 13149
Page 4 Docket No. 13010
97-2-95-2-30
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.