"1. Consolidated Rail Corporation arbitrarily and capriciously suspended and subsequently dismissed Machinist L. C. Flail from service following trial held on March 28, 1994.

2. Accordingly, Machinist L. C. Flail 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."

Parties to said dispute were given due notice of hearing thereon.

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 the following dates:

- On June 16, 1993, you were observed at the Mobil Gas

Station, Rtes. 11 & 15, Enoia, PA, with two (2) 55 gallon

drums full of diesel fuel which you had removed from

Lucknow Fuel Facility, Harrisburg, PA, and you departed

there at quitting time with same without verbal and/or

written permission from your supervisor or any other person

in authority.

- On August 18, 1993, you were observed operating a pick up

truck owned by R. W. Hatten into which you loaded two (2)

empty 55 gallon drums and then filled them with diesel fuel

at Lucknow Fuel Facility, Harrisburg, PA, after which you

departed company property and returned later without any

drums without verbal and/or written permission from your

supervisor or any other person in authority.

- On August 19, 1993, you were observed operating a pick up

truck owned by R. W. Hatten with two (2) empty 55 gallon

drums in the rear, you filled the two (2) drums with diesel

fuel at the Lucknow Fuel Facility, Harrisburg, PA, and then

departed company property without verbal and/or written

permission from your supervisor or any other person in

authority.

- On October 22, 1993, you were observed in your own

personal vehicle with two (2) empty 55 gallon drums in the

rear, you were observed filling same at Lucknow Fuel

Facility, Harrisburg, PA, and departing company property

- On December 21, 1993, you were observed receiving three

(3) empty 55 gallon drums from R E. Seltzer, Sr., you placed

them in you personal vehicle and filled them full of diesel

fuel, you then departed and parked by the Mobil Gas Station

at Rtes. 11 & 15, Enola, PA, where you were picked up by R

E. Seltzer, Sr., and taken back to the Enola maintenance

Facility, Enola PA. At quitting time, you were returned to

your vehicle at the Mobil Station, Rtes. 11 & 15, Enola, PA,

and departed without verbal and/or written permission from

your supervisor or any other person in authority.

- On December 22, 1993, you were observed with two (2)

empty 55 gallon drums in the rear of your personal vehicle

which you filled full with diesel fuel and then departed

company property 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.

2. Aiding and abetting in the theft and unlawful removal of diesel fuel

as follows:

- On February 3, 1994, you were observed assisting in the

loading of one full 55 gallon drum of diesel fuel into the

personal vehicle of M. C. Drewett at GI-8 Air Compressor at

the Harrisburg Trail Van Terminal, Harrisburg, PA,

without verbal and/or written permission from your

supervisor or any other person in authority.

- On February 16, 1994, you were observed filling four (4) 55

gallon drums, which were loaded onto a pallet on a fork lift

truck you were operating at the Enola Diesel Terminal,

Enola, PA. After you filled the drums, you took them to the

- On February 17, 1994, you were observed arriving at

Lucknow Fuel Facility, Harrisburg, PA, in your personal

vehicle with four (4) empty 55 gallon drums. You gave two

(2) empty 55 gallon drums to T. J. Breach who put them into

his personal vehicle and you then assisted him in filling them.

T. J. Breach then assisted you in filling the two (2) empty 55

gallon drums in your personal vehicle. All four (4) drums

were then taken to the Enola Diesel Terminal, Enola, PA,

and placed by the incinerator and later were secured by the

Conrail Police Department as evidence.

- On February 18, 1994, you were observed arriving at the

Lucknow Fuel Facility, Harrisburg, PA, in your personal

vehicle with two(2) empty 55 gallon drums. T. J. Breach

assisted you in filling them and then you took them to Enola

Diesel Terminal, Enola, PA, where they were placed by the

incinerator and later were secured by the Conrail Police

Department as evidence.

3. Unauthorized possession of a locomotive fuel pump on March 9,

1994, when you advised Conrail Police Officer P. Holtz that you had

a locomotive fuel pump belonging to Conrail in your garage at your

residence at 140 N. 8th Street, Frackville, PA, during an interview

at Conrail Harrisburg Division Corporate Headquarters, 2605

Interstate Drive, Harrisburg, PA, and you did not have written

and/or verbal 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 Conrail property for private personal use

without written and/or verbal permission of a 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 private use. Accordingly, the Board finds that the Carrier has met its burden of persuasion with respect to all the charges.

AWARD