PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Extra Gang Foreman J. W. Kelly for alleged violation of 'General Rule B and General Reglations 700, 702(B), 704, 708, 709' was without just and sufficient cause, on the basis of unproven charges and in violation of the Agreement (System File 5-19-11-14-55/013-210-K).
(2) The claim as presented by Assistant General Chairman J. V. Larson on March 5, 1981 to Division Engineer F. D. Wengert shall be allowed as presented because said claim was not disallowed by Division Engineer F. D. Wengert in accordance with Rule 49(al 1.
(3) As a consequence of either or both (Z) and/or (2) above, the claimant shall be


OPINION OF BOARD: Claimant was first employed by Carrier as an extra gang
 laborer on June 2, 1978. He was later promoted to the
 position of extra gang foreman. On March 3, 1981, the date of the incident
 which resulted in his dismissal, he was assigned to replace defective cross ties
 at Calamada Street, Whittier, California.
At about 12:45 PM, T. R. Cromwell, Special Agent observed a green Chevrolet Blazer with a small trailer at the site and two men, John Jeffreys and his brother, load five railroad ties into the trailer. After loading the ties, Mr. Jeffreys crossed the street, walked up to Foreman Kelly and handed him something, later identified as $25.00. At a location some two blocks away from the site where this occurred, Mr. Jeffreys was stopped by the Special Agent and asked whether he had bought the ties from Mr. Kelly. He replied affirmatively and added he paid $5.00 each for the ties. Mr. Jeffreys supplied the Carrier with a signed statement confirming the transaction but said he did not wish to be involved in any investigation of the matter. A picture of the ties loaded in the trailer was made a part of the evidence.
The incident was called to the attention of R. R. Brown, Roadmaster who listened to Mr. Jeffreys, statement as to what had transpired. On learning the circumstances, Mr. Brown advised Mr. Kelly he was removed from service. On March 6, 1981, Mr. Brown addressed a letter to Mr. Kelly confirming his removal from service account sale of the ties in violation of General Rule B and General Regulations 700, 702(B), 704, 708 and 709, quoted as follows:
                      Locket Number MW-24737


        "GENERAL RULE B: Employes must be conversant with and obey the rules and special instuctions. If in doubt as to their meaning, they must apply to proper authority of the railroad for an explanation.


        RULE 700: Employes will not be retained in service who are careless of the safety of themselves or others, insubordinate, dishonest, immoral, quarrelsome or otherwise vicious, or who do not conduct themselves in such a manner that the railroad will not be subjected to criticism and loss of good will, or who do not meet their personal obligations.


        RULE 702-B: Employes must comply with instructions from proper authority.


        RULE 704: Employes are required to report any misconduct or negligence affecting the interest of the railroad.


        RULE 708: Unless specifically authorized, employes must not use the railroads credit and must neither receive or pay out money on the railroad account. Property of the railroad must not be sold or in any way disposed of without proper authority. A11 articles of value found on railroad property must be cared for and promptly reported to proper authority.


        RULE 709: Employes must not discriminate between patrons of the railroad. The acceptance of gratuities or rewards from patrons of the railroad is prohibited.n


Mr. Brown's letter also notified Mr. Kelly to attend a formal investigation of the matter. A hearing was held on March 13, 1981 at which claimant was represented by officers of the Union who participated in the questioning of witnesses. On the basis of the facts and circumstances developed during the investigation and hearing, the claimant was advised by Carrier letter of March 30, 1981 of his dismissal for violation of the rules set forth above.
Statements pertaining to the alleged violation of the time limit rule as a basis for allowing the claim have been examined and are found to be without merit. Claimant was suspended from service in accordance with Rule 48(o) of the Labor Agreement. Such action is permitted in serious cases such as this. The rule provides as follows:
        "(o) It is understood that nothing contained in this rule will prevent the supervisory officer from suspending an employe from service pending hearing where serious and/or flagrant violations of Company rules or instructions are apparent, provided, however, that such hearing shall be conducted within thirty (30) calendar days from the date the employe is suspended and a decision rendered within twenty (20) calendar days following the date the investigation is concluded.ff

                      Award Number 24566 Page 3

                      Docket Number MW-24737


Following suspension claimant was accorded a hearing as required by the rule. Evidence, does not support the charge that the hearing was not conducted in a fair and impartial manner. Moreover, both the hearing and decision were well within the time limits specified in the rule. In cases of suspension and dismissal the burden of proof is clearly on the Carrier. Review of the evidence shows this requirement was fully met. The evidence establishes conclusively claimant's guilt in violation of Carrier rules cited in the allegation.
This is a case of misappropriation of company material to claimants own financial benefit in clear violation of well established rules. Taking money for Company ties was clearly a dishonest act for which the Carrier took appropriate disciplinary action. As stated in Second Division Award No. 7831, Referee Van Wart held in part:
        "By whatever name such act may be labeled, it remains a dishonest act. Carrier, particularly as a common Carrier, should not employ, keep, or be required to keep, in its employe (sic) a dishonest employee. There is no cause in the record to conclude that Carrier had acted arbitrarily or capriciously in discharging Claimant.^


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:
        Nancy J v -Executive Secretary


Dated at Chicago, Illinois, this 17th day of November, 1983.