NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25154
(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 W. M. Cutler for violation of 'Rule L'
was excessive (System Docket 721).
(2) The claimant shall be reinstated with seniority and all other rights
unimpaired."
OPINION OF BOARD: Claimant was a former trackman, with about five years of
service, headquartered at Butler, Pa., under the supervision of
Assistant Supervisor Production J. P. Singer.
On July 28, 1981, claimant took a Company bus from the camp site without
permission, allegedly for the purpose of taking some money to his mother in
Pittsburgh. The contention is that he simply "borrowed" the bus.
The Carrier states that about 10:30 P.M., July 28, 1981, claimant was
arrested by Pittsburgh police, while driving the Carrier's bus. Claimant was
notified to attend a trial on August 11, 1981, on the charge:
"Violation of Rule L of Conrail's Rules for Conducting Transportation
when you were found with Vehicle M1174 by Pittsburgh Police Department
at 10:30 p.m. on July 28, 1981, at Perryville Avenue and Burgess Street,
Pittsburgh, Pa."
Carrier's Rule "L" referred to in the letter of charge, reads in part:
"Deliberate misuse or damage to Company property is prohibited.
The unauthorized possession, removal or disposal of any material
- from railroad property or property served by the railroad is
prohibited."
The trial, or investigation, was held as scheduled, with claimant present
and represented. A copy of the transcript has been made a part of the record. From
our review we find that the trial was conducted in a fair and impartial manner.
Following the trial, claimant was dismissed from the service.
From our review of the record, including claimant's statement at the
trial, we are convinced that claimant did take the Company bus for his personal
use on July 28, 1981, without the permission of any supervisory personnel. However,
we are not convinced that claimant intended to or was attempting to steal the bus,
Award Number 24762 Page 2
Docket Number MW-25154
or that theft was actually involved. Severe discipline was warranted against
claimant; however, permanent dismissal was excessive. The time that claimant has
been out of service should constitute sufficient discipline. We will award that
claimant be restored to the service, with seniority and other rights unimpaired
but without any compensation for time lost while out of the service. Actually,
compensation for time lost is not included in the Statement of Claim before the
Board.
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 discipline was excessive.
A W A R D
Claim sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: v
Nancy er - Executive Secretary
Dated at Chicago, Illinois, this 13th day of April, 1984.
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