STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Employes Union on the Chicago Great Western Railway, that:
OPINION OF BOARD: On February 19, 1965 Carrier dismissed Claimant L. J. Anderson from service after a formal investigation in which he was charged with violating certain Rules and Regulations of Carrier pertaining to the use and protection of the Carrier's property. Claimant at the time of his dismissal from service was employed as Agent-Telegrapher at Lorimor, Iowa and had been in the service of the Carrier for approximately nine years.
The essential facts involved in this dispute are not in issue. Claimant parked his mobile home on Carrier's property at Talmage, Iowa, for a period of approximately 19 to 20 months prior to his dismissal from service without a lease. He also arranged for a utility Company to provide electricity to his mobile home and a meter was installed therefor on the Carrier's property. Claimant also had a deep freeze food refrigerator unit installed in Carrier's depot building at Talmage, Iowa, on or about July 8, 1964 for his personal use and without authority from Carrier. Said deep freeze refrigerator unit was then connected to Carrier's electric supply outlet and meter at Talmage, Iowa for approximately seven months during which time electricity consumed by the unit was charged to Carrier's account. The record discloses that Claimant personally paid only one electric bill for the month of August 1964 during the entire period that electrical service was rendered by the utility Company. Claimant also stored various other personal household effects in Carrier's depot in addition to the deep freeze refrigerator unit without authority or benefit of lease.
Claimant requests reinstatement with back pay on the grounds that the charges against him were improper, the hearing was not fair and impartial and that the evidence adduced did not support the discipline assessed by Carrier. Employes on behalf of Claimant assert that Carrier acquiesced in Claimant's occupancy of its property over an extended period of time before the instant dispute and that the notice of charges was not prompt and timely within the meaning of Rule 11 (c) of the Agreement between the parties. Employes further contend that Claimant had oral permission to park his mobile home on Carrier's property which was denied by Carrier at the hearing. Em-
ployes also assert that Carrier did not enforce the Rules with equal vigor against other employes in the past but no probative evidence was offered in support of this contention.
Carrier's position is that Claimant's admission of the undisputed facts fully supports the disciplinary action taken and that a cursory examination of the various rules involved demonstrates their applicability and the Claimant's violations of said rules. Carrier denies acquiescence and contends that appropriate action was taken promptly following a full investigation of the charges against the Claimant.
The controlling provisions of the Agreement between the parties and the Rules and Regulations of the Carrier's Operating Department are as follows:
Employes who are careless as to safety of themselves or others, insubordinate, dishonest, immoral, quarrelsome, or otherwise vicious, or whose conduct and handling of personal obligations causes criticism and loss of good will from patrons and the public, will not be retained in the service.
Unless specially authorized, employes must not use the railroad's credit and must neither receive nor pay out money on the railroad account. Property of the railroad must not be sold nor in any way disposed of without proper authority. All articles of value found on railroad property must be cared for and promptly reported.
They are in charge of the Company's interests at their respective stations, of its buildings, sidings and grounds within the station limits, of the station appliances and equipment, of its accounts and records, of the material and supplies furnished for its work, of all cars at the station except in trains, of the receipt, care, forwarding and delivery of baggage and freight, of the sale of tickets, collection of station revenues, remittance or deposit of money received for the Company, of such disbursements thereof as may be properly authorized, of all station employes while at the station, so far as relates to their conduct or to the station work. They will also have charge of such other matters as may arise in connection with the station management or may be assigned to them by proper authority. The Company's business affairs will not be divulged except to the proper officers of the Company.
They will make frequent inspections of the station premises and see that all parts thereof are in safe and proper condition for the uses to which they are devoted. Any defects they cannot remedy will be promptly reported to the Superintendent.
They will familiarize themselves with the boundaries of the Company's property at their stations, and not permit any encroachment thereon. Unless provided for by lease, they will not allow any commodities to be placed on grounds or right of way at their stations for the purpose of storage without written permission from the Superintendent, and then only after release on prescribed form has been executed by the owner."
It is clear from the record that the Carrier should have been aware of Claimant's unauthorized use of its premises without benefit of lease long before the instant dispute. Testimony concerning the installation of a telephone at the Claimant's mobile home indicates constructive notice to the Carrier that the mobile home had been parked on its property by the Claimant on a permanent basis. However, the Claimant was the agent in charge of the
station and the official responsible for authorizing and disbursing Carrier funds for services rendered such as the periodic payment of electrical bills. Claimant in his official capacity as Agent-Telegrapher knowlingly misused his position of trust when he converted Carrier's funds to his own use by the payment of electrical bills which covered service primarily for his own personal benefit and enjoyment. The initial misappropriation and conversion of the Carrier's funds was amplified in July 1964 after the installation of a deep freeze refrigerator unit on the Carrier's property without authority. The operation of said deep freeze unit was charged to the Carrier for approximately seven months by Claimant prior to his dismissal from service. Thus we find that the Carrier's disciplinary action resulted from an accumulation of Rule infractions by Claimant over the twenty month period following the unauthorized use of the Carrier's premises when Claimant parked his mobile home on the Carrier's property without benefit of lease. The notice of charges filed by Carrier with Claimant followed a thorough investigation and was promptly delivered to him on completion of said investigation. The Carrier is not barred by Inches from asserting its rights because of failure to act at an earlier date. There was no undue delay or neglect following the discovery of Claimant's varied and improper activities.
We find no basis to support Claimant's contention that the hearing was not fair and impartial. The charges against Claimant were not denied and the only probative testimony advanced on behalf of Claimant was concerned with his years of service without a previous blemish on his record. Such testimony is preferred in mitigation and we have duly considered Claimant's previous record in view of the ultimate penalty imposed by the Carrier.
We find that Claimant had a full, fair and impartial trial and that there is nothing in the record to substantiate a charge or sustain a finding of arbitrary or capricious action on the part of the Carrier.
This Division by a well established line of awards will not overturn a decision of the Carrier in the absence of a finding that the discipline imposed was unfair, capricious or arbitrary. (Award No. 10900). We find no such error or abuse of discretion here. The claim will be denied.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and