NATIONAL RAILROAD ADJUSTMENT HOARD
THIRD DIVISION Docket Number NW-22247
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Railway Company
STATME' T OF CLAIM: "Claim of the System Committee of the Brotherhood
that
(1) The dismissal of Mr. C. E. Floyd for alleged 'conduct
unbecoming an employee' was unwarranted, without just and sufficient
cause and on the basis of unproven charges (Carrier's File W-95).
(2) M_^. C. E. Floyd be reinstated with seniority, vacation
and all other rights unimpaired and he be compensated for all wage loss
suffered."
OPINION OF BOARD: An investigation by Carrier's Police Department
yielded information that a vendor, S&H Oil Company,
had charged and been paid in excess of $41,000 for material and services
not rendered in 1974 - 75. That investigation also indicated that
Claimapt, through his position as T&S Supervisor, had participated
with others including General Division Engineer Davidson, in a
conspiracy to double charge and otherwise overcharge Carrier for the
fueling and repair of trucks by S&H Oil Company. Following due notice
and hearing Claimant was found guilty and terminated from service on the
following charge:
"conduct unbecoming an employee in connection
with your involvement in embezzlement of funds
from, and fraudulent actions against, Southern
Railway Compazu by agents of an alleged S&H Oil
Compaw and, in particular, but not limited to,
your action in accepting payments from agents of
said alleged S&E Oil Company in consideration for
your knowledge and involvement in the actions of
said agents in the billing and collecting of
payments from Southern for services not rendered
and for petroleum and other products not delivered."
Careful review of the hearing transcript and other record
evidence indicates that Carrier had substantial evidence to support its
conclusion of guilt. Carrier did not err in concluding that Claimant
I
Award Number
22639
Page 2
Docket Number r&4-22247
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had abused his supervisory position for personal profit by accepting
kickbacks in the form of under the table payment from S&H Oil Company
for performing work he was already being paid to do by Carrier, and for
which S&H then double-billed Carrier. The record shows that Claimant
realized at least $875.00 as a participant in that scheme. Given the
proven offense the penalty of dismissal was not excessive especially in
light of Claimant's prior discipline for dishonesty on the job. See
Awards 1-16483, 3-20003, 4-3033.
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 Ac r, 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 ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
49 AV
Dated at Chicago, Illinois, this
30th
day of November
1979.
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