NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-19486
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employee
PARTIES TO DISPUTE:
(George P. Baker, Richard C, Bond, Jervis Laagdon, Jr.,
( and Willard Wirtz, Trustees of the Property of
(Penn Central Transportation Company, Debtor
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6981)
that:
(a) The Carrier violated the Rules Agreement, effective February 1,
1968, particularly Rule 6-A-1, when it assessed discipline of dismissal on Timothy Waters, Sr., Jani
Southern Region, St. Louie Division.
(b) Timothy Waters, Sr.'s record be cleared of the charges brought
against him on February 16, 1970,
(c) Claimant Timothy Waters, Sr., be restored to service with seniority
and all other rights unimpaired, and be compensated for wage loss sustained during
the period out of service, plus interest at 6% annum compounded daily.
OPINION OF BOARD: By letter dated February 16, 1970 Claimant was given a notice
to attend an investigation on February 20, 1970. The investi
gation began on that day and concluded on March 5, 1970. The notice letter re
ceived by Claimant states in part as follows:
"This is to advise you to appear in the Terminal
Superintendent's office, Rose Lake Yard Office, East St.
Louis, Illinois, at 2:00 P.M., Friday, February 20th,
1970, to attend an investigation to determine your
responsibility, if any, in connection with unauthorized
use of Company Credit Card in obtaining gasoline in a
five-gallon can, which you removed from Company Property,
in the trunk of your personal vehicle at approximately
10:44 P.M. on February 1st, 1970."
A similar notice was delivered to the Claimant on February 9, 1970
which he declined to accept and consequently the above mentioned letter dated
February 16, 1970 was mailed to Claimant advising him to report for the investigation on February 20
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Award Number 19636 Page 2
Docket Number CL-19486
Subsequent to the investigation, Claimant was advised by Carrier's
letter dated March 17, 1970 that he was dismissed from service.
The Employees contend, in effect, that the words in the notice letter
do not constitute a proper or precise charge within the meaning of Rule 6-A-1
which states in part as follows:
"(a) An employs who has been in the service more
than 60 calendar days or whose application has been
formally approved shall not be disciplined or dismissed
without a fair and impartial investigation..,..
(b) An employs charged with an offense shall be
given written notice in advance of the investigation of
the exact offense involved. No charge shall be made
that involves any matter of which the employe's
immediate supervisor has had knowledge 30 calendar
days or more.
<..
(h) If the final decision decrees that the charges
against the employs are not sustained, the record shall
be cleared of the charge; if suspended or dismissed,
the employs shall be reinstated and compensated for the
difference between the amount he earned while out of
service or while otherwise employed and the amount he
would have earned had he not been suspended or dismissed,"
The Board is aware of prior awards cited by the General Chairman in
support of his procedural argument but we feel that a provision such as 6-A-1
requiring the Carrier to give employees advance notice of the exact charges
against him does not require notice that would meet the technical requirements
of a criminal complaint. As stated in Award 17998 (Quinn):
"A notice is sufficient if it meets the traditional
criteria of reasonably apprising an employs of what set
of facts or circumstances are under inquiry so that he
will not be surprised and can prepare a defense."
The Board finds that, in the instant case, the Claimant was well aware
of the matter under investigation and, as Carrier pointed out, this was evident
because Claimant came to the investigation ready to defend himself with a receipt
dated February 1, 1970 for the purchase of the 5 gallon can of gasoline, which
receipt he obtained on February 16, 1970, by a subterfuge, that is, telling Allen
Thomas, the gas station proprietor, that the judge who ordered him (Claimant) to
make restitution for the gas wanted the receipt dated February 1, 1970 and not c
the day of payment, February 16, 1970.
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Award Number 19636 Page 3
Docket Number CL-19486
In view of the foregoing, the Board feels that the procedural objection advanced by the General
Turning our attention now to the substantive aspects of the Petitioner's
claim, we note first that the Claimant Timothy Waters, Sr. went to work for the
Carrier (former Pennsylvania Railroad) on July 14, 1941.
On said February 1, 1970, Claimant stopped at the service station of
one Allen Thomas where he filled the gas tank of a truck owned by Carrier as well
as a five gallon can with gasoline. When he got back to Rose Lake Yard, Claimant
took the five gallon can from Carrier's truck and put it in the trunk of his own
car. After work, he departed from Carrier's property and was arrested by Company
police officers with the assistance of the Fairmont City Police.
A notation on the invoice received by the Carrier from the Thomas garage
for the gasoline purchased by Claimant on February 1, 1970 indicates that the
$7.30 purchase included the 5 gallon can of gasoline.
While the Claimant claims he personally paid for the can of gasoline on
February 1, the record persuades us that he paid for the gas on February 16, 1970
as a means of making restitution.
The Board is convinced that Timothy Waters, Sr. was guilty of the offense
under investigation and that Carrier was justified in disciplining him.
In view of the long service of the Claimant, we have given careful
consideration to the matter of whether the discipline imposed was commensurate
with the gravity of the offense. Although the amount stolen, $2.19 worth of gas,
was small, any dishonesty on the part of an employee is a serious offense.
In the light of all the circumstances, the Board feels that Claimant
should not be compensated for wage loss sustained during the period out of service
but that it would be excessive discipline not to restore him to service with
seniority and other rights unimpaired.
FINDINGS; The Third Division of the Adjustment Board, upon the whole record and
all the evidence, finds and holds:
That the parties waived oral hearing;
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;
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Award Number 19636 Page 4
Docket Number CL-19486
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claims (a) and (h) are denied. Claim (c) is sustained to the extent
and in the manner set forth
in
the Opinion of the Board by reason of the alteration of the measure of discipline, as set forth
in
said Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
ATTEST,~· ~ i
Executive Secretary
Dated at Chicago,
Illinois,
this 27th day of February 1973.
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