(Brotherhood of Maintenance of Way Employee PARTIES TO DISPUTE : Missouri Pacific Railroad Company former Chicago & Eastern Illinois Railroad Company)

 STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Extra Gang Foreman R. W,Marlow for alleged unauthorized possession of Company property was improper, without dust and sufficient cause and on the basis of unproven charges (Carrier's File S 214112).

 (2) Extra Gang Foreman R. W. Marlow shall now be allowed the benefits prescribed in Agreement Rule 34(d)."

 OPINION OF BOARD: The record indicates that on September 25, 1979, the Carrier
 was alerted to the possibility of the Claimant having in his
 possession, at his home, railroad ties. In connection with this tip, Special
 Agent Latta drove to Claimant's home. There is no dispute over what he observed.
 He saw a red five-gallon gasoline safety can, two snow brooms, an Arctic water
 cooler, and a carton of Amoco grease cartridges. He also noticed several rolls
 of wooden storm fence, welding equipment, several track shovels, and one orange
 colored 8-hp gasoline engine. Based on Special Agent's observation, the Claimant
 was notified to attend an investigation on the following charge:

The Claimant does not deer that the items observed by Special Agent Latta were in his possession, but he claims that some of the items were not company property sad other items had been dismxded as junk, that the motor and ties were given to him by company supervisors, and that he possessed the shovels and brow in connection with his duties as a track foreman. The Claimant testified that the ties were given to him by Roadmast%r Jeter and Roadmaster Pratt. In this connection the Organization directs attention to the testimony of Jeter and Pratt. .,'eter testified as follows:








Roadmaster Pratt testified to the following:

          "Q. During this last tour of duty is which Mr. Marlow has worked for you did he ever ask your permission to take used cross ties for his personal use or did you ever give such permission to Mr. Marlow?


            A. During the last tour, of duty I don't believe I did. But in the other tour of duty I have given Marlow cross ties."


Regarding the 8-hp engine, the Claimant contends that it was gives to him by Mr. Fawbush, Equipment Mechanic. Regarding the shovels and brooms, the Claimant testified to the following effect:

        "In connection with my possession of company shovels, as being foreman subject to call at any time, day or night I keep these shovels on hand so that when called out during the night, excessive amount of time and travel going to the headquarters to pick up tools, I can save

        by going directly to where the trouble is. Having _

        shovels is my personal possession with knowledge of

        supervisor and was condoned."


Regarding the gas can, the Amoco grease cartridges, the organization established on cross-examination that these items are readily available for purchase in public places. The Claimant asserted that the snow fence was owned by his father and was not company property. It is noted that the Special Agent did not see any mark on the snow fence that would establish it was railroad property, although it was similar to that used by the Carrier. A similar defense was proferred regarding the welding equipment. Regarding the water cooler, the Claimant testified that it was discarded. as company wok as it had a hole in it. He took it, patched it, and was using it to water calves.

 The company argues that the function of the Board is limited to inquiring whether the Claimant received a fair and impartial investigation, whether substantial evidence supports the Carrier's findings, and whether the discipline assessed was reasonable. Particularly is respect to Carrier's determination that the Claimant had unauthorized possession of-.company property, they direct attention to the evidence as it relates to shovels, brooms, and the 8-hp engine.

 After carefully considering the evidence, it is the Board's conclusion that the evidence regarding the gas can, grease cartridges, snow fence, welding equipment, the cooler, and ties is not particularly convincing. In respect to the ties, the testimony of the Claimant coupled with the testimony of Jeter and Pratt establishes a very strong presumption that the ties in the Claimant's possession were given to him by his supervisors. There is nothing is the record that would establish that the ties found in his yard were other than those given
                        Award Number 29 Page 3

                      Docket Number MW-2 122


to him by Jeter and Pratt. Regarding the gas can, grease cartridges, snow fence, and welding equipment, there is no evidence that would establish this material was company property. While the material was similar to material used on the Carrier's property, there is nothing unique about its nature, and moreover, the Carrier witnesses admitted that it could be purchased easily elsewhere.

 In respect to the 8-hp engine and the shovels and brooms, however, it is the conclusion of the Board that there is more than substantial evidence to establish that the Claimant was not authorized to possess these items. Moreover, it is our conclusion that due to the serious nature of the offense, discharge is appropriate. The evidence is respect to the engine is very convincing. The Claimant testified that he was is possession of the engine because it was gives to him by Mr. Fawbush. However, Mr. Fawbush testified in an unequivocal manner as follows:

            Mr. Fawbush have you ever given Mr. Marlow as 8 horsepower orange Briggs and Straton engine?


        A. No sir.


            Q. Have you ever placed such an engine in the back of Mr. Marlaw's personal truck?

        A. No sir. .

        Q. Have you ever given Mr. Marlow permission to remove

            such an engine from company property for say reason?


        A. No sir."


Regarding the shovels and brooms, the Claimant testified that he kept them at home in the event that he was called out for emergencies. However, Mr. Jeter specifically testified that permission was not given to the Claimant to take these tools here. He testified that he had told "his people that all railroad equipment used on the railroad would stay on the property". In addition the Board notes the following rule in existence on the Carrier's property:

        "Rule 295 - Tools and Material


        Responsibility. Foremen and others specifically assigned are responsible and accountable for all tools, material, and supplies in their charge. Tools sad material will not be loaned to or exchanged with anyone unless properly authorized. All tools and supplies when not is use must, if practicable, be kept locked in tool box, car, house, or where they can be protected."


Theft is a charge of utmost seriousness. Dismissal is most often held to be appropriate for an offense of this nature. In view of tire nature of the evidence is the case, we cannot conclude that the penalty of discharge is either arbitrary, capricious, or excessive.

Award Number 24099

Docket Number 18·1-24122


Page 4

        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 Employee within the meaning of the Railway Labor Act, as approved June 21, 193+;

 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.

 Attest: Acting Executive Secretary
        National Railroad Adjustment Board


NATICKAL RAILROAD AaT0.STMENT BOARD
 By Order of Third Division

        Rosemarie Breach - Administrative Assistant


Dated at Chicago, Illinois, this 5th day of January 1983.

 Chico L

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