NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number MW-24790
Tedford E. Schoonover, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
( (former Penn Central Transportation Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Trackman C. E. Crofoot for alleged 'Conduct
unbecoming an employe' was without just and sufficient cause (System Docket SD570).
(2) The claimant shall be reinstated with seniority and all other
rights unimpaired, his record be cleared and he shall be compensated for all
wage loss suffered.
OPINION OF BOARD: Prior to dismissal, claimant was employed as a trackman
with seniority date of March 5, 1975. His employment on
the Carrier was Ashtabula, Ohio under Track Supervisor Ray Klocek. He was still
so employed on January 12, 1980, the date of the incident out of which his termination
was based. On that date he was discovered to have built a fence on his property
using railroad ties.
By notice of February 11, 1980, claimant was advised as follows:
"Conduct unbecoming an employee at or near 951 Stumpville Rd., Jefferson,
OH, leading to your arrest on January 12, 1980, for possession of
stolen Conrail property, which consisted of 300 cross ties; 19 of
which were new ties, and.4 of the 19 new ties were clearly marked
CR77KOSK."
At the trial hearing, claimant gave a somewhat incredulous account of
how he came into possession of the ties and his subsequent actions in appropriating
them to his own use. He claimed he bought them from an unknown person at a bar;
a person he never saw before or since. The delivery occurred at 9:30 at night
when he could not see that some of the ties were new with Carrier markings.
However, the next morning, he saw the markings identifying the ties as new and
worth far more than he allegedly paid. He made no effort to inform proper carrier
Officers but proceeded to use the ties for his own purposes even though as a
trackman he knew of the worth of ties. He suspected they might be stolen property
but failed to take prudent and reasonable actions in protecting himself as an
employe. In the circumstances we agree that Carrier had reasonable and just
cause for terminating claimant's employment. The seriousness of the matter is
illustrated by the fact criminal charges were filed against claimant and referred
for consideration and action by a grand jury.
Award Number 24593
Locket Number MW-24790
Page 2
Our view of this case are in accord with First Division Award 16785 by
Referee Loring:
"In these investigations as to wlxether a discharge was wrongful, the
Carrier is not bound to prove justification beyond a reasonable doubt
as in a criminal case or even by a fair preponderance of evidence as
does the party having the burden of proof in a civil case. The rule
is that there must be substantial evidence in support of the Carrier's
action."
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.
ATTEST:
Z~Zde;~,
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Nancy ever - Executive Secretary
Dated at Chicago, Illinois, this 15th day of December 1983.
