PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Section Foreman M. T. Venstad for alleged violation of "Rules 700E and 706" and "Form 15125" was without just and sufficient cause, unwarranted and in violation of the Agreement (System File T-D-143C).
(2) Section Foreman M. T. Venstad shall now be allowed the benefits prescribed in Agreement Rule 40(G).
OPINION OF BOARD: On March 11, 1980, the Carrier's Roadmaster at Minot discovered
 that Claimant, a Section Foreman stationed at Towner, North
 Dakota, may have misused a Carrier gasoline credit card. A Division Special
 Agent interviewed a service station attendant who confirmed that Claimant had
 tendered a Burlington Northern credit card as payment for filling Claimant's
 personal pickup truck with fuel on two occasions. Subsequently, Claimant conceded
 that he had purchased $18.00 and $25.00 worth of gasoline for his own vehicle
 with the Carrier's credit card. In addition, Claimant admitted that he rot only
 lacked permission to use the card to buy gas for his truck but he also failed
 to report his purchases to the Roadmaster. However, Claimant thought he could
 justify the purchases since, in February, 1980, he had voluntarily used his
 own vehicle to drop off and pick up the Carrier's hyrail at the Minot motor car
 repair shop. Also, he did not make a three In ur overtime claim for delivering the
 Carrier's vehicle. The Roadmaster testified that if Claimant had submitted
 an expense voucher, he would probably have received reimbursement for using
 his truck on authorizied Carrier business. After an investigation held on
 March 17, 1980, the Carrier dismissed Claimant from service for violating General
 Rules 700 (B) and 706.
At the conclusion of the March 27, 1980 investigation, the Organization objected to the timing and location of the hearing. According to the Organization, the Carrier unilaterally postponed Claimant's investigation from March 24, 1980 to March 27, 1980, which is contrary to Rule 40 (I) of the applicable Agreement. Rule 40 (I) declares that an investigation "...may be postponed if mutually agreed to by the Company and the employe or his duly authorized representative." Since neither Claimant nor his representative expressly consented to the postponement and because the hearing was convened away from Claimant's headquarters the Organization urges us to sustain the claim as presented. The Carrier argues that Claimant tacitly approved of the three day postponement and, moreover, the delay was necessary so all essential witnesses would be available to testify at the investigation.
After carefully perusing the record, we find that Claimant impliedly acquiesced to the slight delay in holding the investigation. Third Division Award No. 24084 (Schoonover). Moreoever, the Carrier presented a compelling justification for seeking a postponement. Necessary witnesses were unable to attend on the original hearing date. Thus, Claimant had the opportunity to
                    Locket Number MW-24203 Page 2


confront all witnesses and he received a hearing free from any prejudicial defects. Third Division Award No. 22703 (Kasher).
We also conclude that the hearing could be held away from Claimant's headquarters point to accomodate all participants. Rule 40 (E) does not absolutely require that the investigation be convened at the charged employe's headquarters. The purpose of Rule 40 (E) is to prevent the Carrier from holding an investigation at a distant location which would place great hardship and expense on the charged party to attend the hearing and defend himself. in this instance, the Carrier held the hearing in Minot which was reasonably close to Towner.
Contrary to the Carrier's position in its submission, the Carrier shoulders the burden of proving, with substantial evidence, that Claimant fraudulently used a Carrier gasoline credit card. In this case, the Carrier has satisfied its burden of proof. Claimant candidly conceded that he purchased gasoline for his private vehicle and charged the purchase to a company credit card. By using the card without permission, Claimant converted and misappropriated carrier funds. Claimant should have requested expenses and overtime pay instead of misusing a credit card which had been entrusted to him.
Though Claimant committed a serious offense, the penalty of discharge was excessive and unduly harsh. Claimant had accumulated thirteen years of fine service with, apparently, an excellent work record. Though his misconduct is unexcuseable, the Roadmaster testified that Claimant probably would have been entitled to reimbursement for expenses. The time Claimant has spent out of service should convince him that he must be honest and trustworthy. Claimant shall be reinstated to service, with his seniority unimpaired, but without compensation for time lost.
        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. i'


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST- C
        Nancy ver - Executive Secretary


Dated at Chicago, Illinois this 13th day of April, 1984