PARTIES TO DISPUTE:
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
 (1) The dismissal of Crankhand M. L.. Weaver was arbitrary, capricious and on the basis of unproven and disproven charges (System File C-4(13)MLW/12-39
 (79-36) J1).
 (2) Crankhand M. L.. Weaver shall be reinstated with seniority and all other rights unimpaired, his record be cleared and he shall be compensated for all wags loss suffered."
 OPINION OF BOARD: On February 26, 1979, the Carrier directed a notice of
 investigation to the Claimant requesting him to attend an investigation. The letter read in pertinent part:







The investigation was held on March 1, 1979, and subsequent thereto the Claimant was dismissed.

 The charges were preferred in connection with the Claimant's delivery of scrap ties to the George Hunt Top Soil Company. There is no dispute that the ties were removed from the Carrier's prop by the Claimant and delivered to the aforementioned party.

                      Docket Number MW-23930

It is the conclusion of the Board that while the evidence conflicts, and there is a substantial basis to support the Carrier's finding and furthermore, the defense put forth by the Organization fa overcome the prima facie nature of the Carrier's case.
 The Organization contends that the Carrier had a practice of allowing employes to remove old crossties unfit for the Carrier's use, provided such crossties were not sold to a third party. T contend that there is no evidence that the Claimant sold the ties, but received monies only for the use of his truck involved in picking up and delivering the ties to Mr. Hunt. They assert no value wa placed on the crossties delivered and that the Claimant received no money for the ties themselves. T Organization directs attention in this respect to the Claimant's testimony. The Organisation also as that there was a practice, condoned by the Company, of employes accepting money for the labor involv in delivering old ties to non-employes.
 While the Organization's case is ably argued, it fails to overcome the prima facie nature of the Carrier's proof. Even assuming that the Claimant received money for only labor, there is convincing the record that the Claimant had been specifically and previously warned not to accept any money in with the ties including the delivery of ties. Thus, the Claimant's conduct was clearly contrary to C and clear instructions given to the Claimant. It is clear that the policy of giving old ties to empl them to utilize them for personal use primarily and was specifically designed to prevent them from t advantage of the benefit for personal financial gain. This includes gain for so called "delivery". T D. S. Blair indicated that in December, 1977, it had come to his attention that Mr. Weaver was selli Hint. Mr. Blair further testified that after he became aware of this, he "... specifically spoke with him (Weaver) and told him of Mr. Herndon's feelings that we could not, would not, let anyone receive any kind of transporting, selling, taking tips, or anything, no matter what you call it, we would not tolerate." Division Engineer Herndon testified as follows:

        "... and because of several instances which came up in year 1977, one of which involved Mr. Weaver, I set down the policy with all of the Roadmsaters and had them advise all of their forces that under no circumstances would any ties be given to anybody for resale or trade or any kind of compensation in any may, and I told them to make that plain to all of the foremen, if they wanted to give a tie to a neighbor or somebody, they could do it but they could not accept any money for it, nor any compensation. A case came up in 1977, involving Mr. Weaver and I personally asked Mr. Blair if he had told all of his firemen and all of his men and then I asked him I says, have you advised Mr. Weaver that he cannot use a cross tie or get a cross tie and give it to anyone else

        for any kind of compensation and Mr. Blair informed me he '`

        had."

                      Award Number 24314 Page 3

                      Docket Number MW-23930


The evidence reviewed above establishes that there was substantial evidence to support the portion of the charge relating to dishonesty. The seriousness of this charge is sufficient enough to uphold the discharge. The Board also notes that there is evidence supporting other portions of the charge.

 In summary, it is the conclusion of the Board that the discharge is proper in light of the fact that the Claimant had been specifically warned not to engage in the distribution of old ties to non-employes for profit in any form. His conduct, contrary to these clear instructions, vas both dishonest and insubordinate.

 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 Act, 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: Acting Executive Secretary
        National Railroad Adjustment Board


By
        Rosemarie Breech - Administrative Assistant


Dated at Chicago, Illinois, this 14th day of April 1983.