NATIONAL RAILROAD ADjus7l= BOARD

Award Number 20409

THIRD DIVISION Docket Number CL-20564

William M. Edgett, Referee

(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employee PARTIES TO DISPUTE' (The Central Railroad Company of New Jersey ( (R. D. Timpany, Trustee)

STATEMT OF CLAIM: Claim of the System Committee of the Brotherhood (GL7489) that:

(a) Carrier violated the Clerks' Agreement, with specific ref-

erence to Rule No. 37 - REPRESENTATION, INVESTIGATION, OR HEARING, on July
25, 1972, when it. summarily dismissed John Dobstetter, Section Stockmen,
Elizabethport, N.J., from service, and

(b) Carrier shall be required to reinstate John Dobstetter to service with seniority and all other rights unimpaired, and

(c) Carrier shall be required to compensate John Dobstetter all wages and other losses commencing July 14, 1972, and to continue until reinstated to Carrier's servi
(d) Carrier shall be required to clear John Dobstetter's record of all alleged charges or allegations which may have been recorded thereon, as the result of the alleged violation named herein, and

(e) For any month in which claim is here made for compensation on behalf of the Claimant involved, the Carrier shall also make premium payments on behalf of Insurance GA-23000, as prescribed in their contract.

OPINION OF BOARD: Claimant, an employs with more than 30 years' service,
was dismissed from service following an investigation
in which it was developed that Claimant participated in the removal of 20
sheets of plywood from company stores. At the investigation, Claimant
testified that he was of the opinion that the plywood removed from company
premises, with the assistance of another company employs and in a company
owned vehicle, was scrap material and was to be discarded. Within a fear
hours after the removal, but after being confronted by his supervisor with
questions concerning the removal, Claimant made arrangements to have the
plywood returned to the shop from which it was taken. Claimant readily
admitted to the removal transaction but denied he knowingly participated
in the dishonest act of theft.

Award Number 20409 Page 2

Docket Number CL-20564

We are aware of, and do not challenge, holdings of this Board that the Company may discharge dishonest employes. We are also aware that on occasion an act that appears on the surface to be dishonest may be the result of an honest mistake or misunderstanding. Applying this logic to Claimant's case leads us to a quandary, especially when considered with Claimant's past record, his years of service, and the principle:

". . that the purpose of administering discipline to employes for infractions of riles is not to inflict punishment but rather to rehabilitate, correct and guide employes in the proper performance of their assigned tasks. The ultimate penalty of dismissal is reserved for repeated and serious infractions of work or conduct rules. This is particularly so in the case of veteran employes . . ," (Award 19037, Cull)

Accordingly, if Claimant, with over thirty years of service, was discharged as a result of an honest mistake, then this Board would have the obligation to return him to service and pay him for his time lost. On the other hand, if dishonesty is involved and the Claimant intended to divert company meterial to his personal purposes, then the discipline should stand. Careful scrutiny of the Record demonstrates that the Carrier has not made a prima facie case (its obligation) that Claimant was not told that the ply- ' wood was scrap and that he could have it for his own use.

However, this Claimant lacks the prerequisite of an unblemished record that would place him in good standing for complete vindication and payment of wage losses. In our Award 17564 (Ratter), we returned Claimaat to service without lost pay after he had been discharged for improperly accepting gratuities from shippers while responsible for the assignment of empty piggyback trailers, as well as a violation of Rule G. Our Record in that case disclosed sufficient evidence to support a finding of guilty, but we held that the penalty was excessive and should be reduced.

In view of the fact that certain questions do exist in the instant Record, we will order that the penalty imposed by Carrier be reduced and that Claimant be restored to service with seniority and other rights unlmr paired but without compensation for time lost.

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 Employee involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

i

Award Number 20409 Page 3

Docket Number CL-20564

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the claim should be disposed of as stated in the opinion.

A W A R D

Carrier is directed to restore Claimant to service with seniority and other rights unimpaired bu

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

ATTEST:

Executive Secretary

Dated at Chicago, Illinois, this 27th day of September 1974.