PARTIES TO DISPUTE:



(1) The dismissal of Crane Operator Ray Nelson was excessive and wholly disproportionate to the offense with which charged (System File D-1111-183).

 (2) Claimant Ray Nelson be restored to service with all seniority and vacation rights unimpaired.

 OP33ION OF BOARD: Claimant, a Crane Operator, was hired on August 1, 1972.
 During the summer of 1973 he was assigned to a crew picking up ties and other material salvaged from the track and roadway of a line between Onswa and Ids Grove, Iowa which Carrier was abandoning. Claimant was dismissed from service effective October 26, 1973, after an investigation, charged with sale of Company property. Carrier alleged andestablished that Claimant had sold fifteen railroad ties as fence posts to a local farmer, for $30.00.

 The sole issue before this Board is whether or not the penalty assessed was disproportionate to the offense with which Claimant was charged. Carrier states that there was substantial evidence to support its decision= by Claimant's own admission he took money for helping the farmer misappropriate Carrier's property. which usually results in dismissal.

 The Organization contends that based on the evidence of record it is not reasonable to conclude that Claimant intended to be dishonest; while admitting that Claimant helped the farmer load fifteen ties, which Claimant testified were left to rot as unusable, this act was at worst poor judgment. Petitioner argues that under all the circumstances of this case, the discipline imposed was excessive.

 Carrier, during the time of the incident herein, was properly concerned about the loss of a substantial number of usable railroad ties, which were later discovered on a farm at Danbury* Nothing is this investigation, however, in any way that the gravamen of this dispute is the question of where Claimant found the ties in question. If he took the ties from a pile of salvaged usable ties and sold them to the farmer, there is not much question as to the


appropriateness of the discipline. If, however, the ties were taken from abandoned ties which were left to rot on the right of way, the issue is considerably different.

 A study of the transcript of the investigation indicates that Carrier apparently relied on the testimony of its special agents as to what the farmer who "bought" the ties stated. The key questions included the location of the ties when they were selected, and the agents indicated that the farmer bad said from Danbury. Claimant, on the contrary, indicated that the ties had been picked up from discarded ties on the Carrier's right-of-way three miles east of Mapleton. We note that the farmer was not called to testify nor were statements from him obtained by Carrier. It is clear that the testimony relied on by Carrier was hearsay and of little probative value compared to the direct testimony, unrefuted, by Claimant. This principle has been upheld in many prior disputes. For example in sustaining Award 12252 we said:

        "As has been stated supra, none of the Carrier's representatives had personal knowledge of the incidents alleged to have occurred. Their testimony was hearsay and of no probative value. Mrs. Contee did not appear at the investigation and therefore her credibility could not be tested in the crucible of crossPxaminntion..."


In spite of the lack of substantial probative evidence on a number of the important elements of this dispute, it is clear that Claimant was guilty of assisting the farmer in obtaining fifteen ties, probably abondoned, but which belonged to Carrier; for this service he was paid $30.00 which can only reasonably be construed as payment for the ties.

 It is not our practice to interfere with Carrier's discretion in matters of discipline in the absence of a clear showing that the action taken was arbitrary, capricious, or unreasonable; however we have reserved the right to rectify an assessment of penalty which is clearly excessive (c.f. Awards 4722, 18016 and Second Division Award 6485). In Award 19037 we said:

        "We do not condone the misappropriation of property. However, it is a practice which, unfortunately, abounds. But the discipline must be reasonable. Thus, the punishment for petty larceny was less than for grand larceny. The punishment must fit the crime."

                    Award Number 20636 Page 3

                    Docket Number W-20726


A very similar situation involving the disposition of used ties was considered by Special Board of Adjustment No. 541 in its Award No. 54. We believe that the reasoning expressed in that Award is applicable herein:

        "No justification is perceived for setting aside carrier's decision that substantial discipline is warranted since employees must realize that they are not free to dispose of company property without permission. On the other hand, we are not persuaded that the record is sufficiently clear to provide a sound basis for dismissal of employees with long service or a finding that they are dishonest."


In this dispute, even though Claimant had only one year of service, we too are not persuaded that the evidence of record is sufficiently clear to justify a fin action in disposing of Carrier property, without permission, whether or not "left to rot on the right-of-way", a serious dereliction, but slightly , removed from outright theft. For this reason, we find that approximately a sixteen month suspension is adequate penalty.

        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 thp Employer involved in this dispute are respectively Carrier and Employer 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 penalty imposed was excessive.


                    A W A R D


Claiman t to be reinstated with seniority rights unimpaired but with no back pay.

                            NATIONAL RAILROAD ADJUSTMENT BOARD PA144-11.1 BI Order of Third Division


ATTEST:
          Executive Secretary


Dated at Chicago, Illinois, this 7th day of March 1975.
        CARRIER MEMBERS' DISSENT TO AWARD 20636, DOCKET M'd-20726

        (Referee Lieberman)


This award is not only erroneous, but harmful to the railroad industry as a whole, in reinstating a man who admittedly misappropriated company ties and took $30.00 from a farmer for these ties. The permissive attitude of this referee, in drawing some nebulous distinction between theft and something "slightly removed from outright theft°, will encourage the continuation of petty thefts which cumulate to millions of dollars a year.

    We dissent.


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