(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (The Long Island Rail Road Company

1. The Carrier violated the Agreement when it dismissed Clerk H. J. Ludwig on charges not proven, and when he was reinstated through appeal he was put back to work with no pay for time lost; such action by the Carrier being improper, unjustifiable, unreasonable, capricious and unwarranted; and

 2. Carrier shall now be required to pay Clerk H. J. Ludwig for all time lost from August 24, 1972, date he was unjustly taken out of service until the date he was reinstated October 27, 1972; and

OPINION OF BOARD: Claimant was charged with committing a dishonest
 act, namely; keeping a gratuity that had been entrusted
 to him. After investigation, he was terminated.

 During the appelate process on the property, Carrier noted that the Claimant's employment record was "unblemished" and restored him to service.

A lengthy recitation of the facts is not necessary. Basically, on April 14, 1972, a Trainman (S) found an attache case on a train. He telephoned the owner and it was agreed that the owner would retrieve the bag at Lost and Found, and that the owner would leave a gratuity for S. On the following day, S asked Claimant if any gratuity had been left for him. Claimant said "no." Thereafter, S contacted the owner again, who assured that a $3.00 tip had been left when the attache case was picked up. The owner described Claimant as the individual who received the gratuity. S stated that when he again confronted Claimant and advised him of the discussion with the owner, he again denied receipt of the $3.00 and stated that he "wasn't a collection agency."


Claimant admits receipt of the gratuity, and states that he placed same in the safe. He also presented a statement from another employee who states that on April 16, Claimant advised him that he had placed a reward of $3.00 in the safe. Claimant admits that he denied receipt of the gratuity when S first inquired, but he was quite busy at the time. At the second confrontation, Claimant states that he did not deny receipt of the money, but, rather, stated that S should contact the Station Manager.

 The main thrust of Claimant's testimony is that he never intended to convert the three dollars t to bring the "entire matter to a head" because he did not feel that Lost and Found employees should be used as collection agencies. He conceded, "...I realize that I handled it rather badly..."

 We are aware of the long series of Awards holding that this Board should not substitute its judgment for that of Carrier and attempt to make credibility determinations, as long as the Carrier has established its case by a substantive if Claimant were to be given the benefit of all conflicts in the testimony, we feel that the Carrier that the Trainman had no right to solicit a gratuity and no legitimate claim to the money, clearly, neither did Claimant. Claimant's admitted denial on at least one occasion, of possession of the money amounted, at least, to a wrongful appropriation, even if there was no intention to permanently deprive S of the money. Even if his motives were good, Claimant chose a rather dangerous road to prove a point.

 A two month suspension, even considering the record in the most favorable light to Claimant, cannot be considered as so excessive as to constitute an arbitrary or capricious abuse of discretion.



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











ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 31st day of May 1974.