(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes ( (Transportation-Communication Division) PARTIES TO DISPUTE: (Norfolk and Western Railway Company (Involving employees ( on lines formerly operated by the Wabash Railroad ( Company)

1. Claim of the General Committee that the Carrier violated the terms of the Agreement between the parties, when on November 17, 1972, it dismissed N. A. Saylor wit






















OPINION OF BOARD: Claimant, the regularly assigned Agent, North Liberty,
 Indiana, was permanently dismissed for the unauthorized removal of three Carrier-owned telephones from Carrier's premises. Claimant had been in Carrier's service for about twenty-nine (29) years when the dismissal occurred.


In protesting the dismissal the Employees assert that: (1) Carrier prejudged claimant's guilt, which served to deny him a fair hearing; (2) it was not claimant's intent to steal the phones and Carrier failed to prove otherwise; and (3) an employee who has twenty-nine years of service, and who is nearing retirement age, should not be permanently dismissed for such a minor infraction.

        The claimant was adequately advised of the charges, the hearing was

conducted fairly, and nothing in the transcript suggests prejudgment of guilt.
 Thus, the record contains no due process deficiencies and we find no merit in
 the Employee's first contention. Also, we find no merit in the contention
 concerning claimant's intent. The hearing transcript shows that, in an appear
 ance before a Justice of the Peace prior to the herein disciplinary hearing, the
 claimant plead guilty and was fined $25 on the charge that he "did ...unlaw
 fully steal three telephones from the North Liberty Depot..." No denial or
 clarification of this guilty plea was entered in claimant's disciplinary hearing
 and, in addition, claimant gave fresh testimony that he had removed the subject
 telephones without authority. His explanation was that he intended to repair
 and return the phones to Carrier's premises. However, the Carrier evidently
 found this explanation not believable and the record provides no basis for dis
 turbing this finding. Thus, on the whole record, we can but conclude that the
 findings of guilt are supported by substantial evidence of record. Award 19216
 (Edgett).In response to the Employee's contention on the excessive nature of
 the discipline, the Carrier has called attention to claimant's previous record
 which reflects two suspensions of thirty (30) days each as well as one dismissal.
 The dismissal, which occurred on May 7, 1970, gave rise to the following comment
 in the Award of Public Law Board No. 947 (August 30, 1972):

          "A careful reading of the investigation transcript leaves no doubt that the Claimant did not comply with the directions in Bulletin No. 93. All of the time claims involved were received in a group on March 9, 1970. We are not convinced that they were transmitted daily by inter-office dispatching.


          There is also evidence that some of the claims for overtime are for dates when no overtime was required. None of the overtime claims are supported by authorizations from the Carrier. From all of the evidence in the record, it is fair to conclude that the Claimant was guilty of the preferred charges."


Despite the above findings the claimant was restored to service with seniority unimpaired by No.-947; yet, he had been in service less than thirty (30)

 days when the incident involved in this dispute occurred. In view of the claimant's previous rec instant infraction, there is no basis for disturbing the herein discipline as excessive and unduly severe. The claimant's long service and retirement situation, albeit compelling
claim. In light of the foregoing, and on the whole record, we shall deny the
                    Award Number lily page 3

                    Docket Number t;L-20206


        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;

 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


        Claim denied.


                              NATIONAL RAILROAD ADJUSTm:FNT BOARD

                              By Order of Third Division


        ATTEST: Executive ecretary


Dated at Chicago, Illinois, this 12th day of October 1973.