NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-23966
John B. LaRocco, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
(Freight Handlers, Express and Station &nployes
PARTIES TO DISPUTE:
(Southern Railway Company
STATEMENT
OF
CLAIM: Claim of the System Committee of the Brotherhood (GL-9370) that:
Carrier violated the Agreement at Atlanta, Georgia, when on March 26,
1979, it dismissed Mr. B. V. Carnahan from all capacities with
Southern Railway Company for a purported act of conduct unbecoming
an employee, in that Mr. Carnahan is alleged to have male fraudulent
entries on the payroll to substantially benefit himself in a financial
manner.
For this violation, the Carrier shall now be required to rescind
its prior imposed discipline and return to Mr. Carnahan all the rights
and benefits to which he is entitled under the May 1, 1973 Clerks'
Agreement and those rights and benefits to which he is also entitled
under provisions and interpretations of Appendix C-1 of the Railway
Passenger Act of 1970.
OPINION
OF
BOARD: The Carrier dismissed Claimant on March 26, 1979, for
fraudulently obtaining vacation pay while working during
January, 1979. Claimant requested a Rule C-1 hearing which was duly held on
April 10, 1979. The Carrier subsequently affirmed Claimant's discharge.
Though the Organization asserts that Claimant was deprived of a fair
hearing, we have carefully reviewed the lengthy transcript and we conclude
that Claimant had ample opportunity to defend himself and his rights were not
impaired. (Third Division Award No. 20673 - Edgett). Also, the original
discipline was timely imposed since the Carrier did not gain sufficient knowledge
of Claimant's alleged fraud until sometime in March, 1979.
At the time of his discharge, Claimant was on an extended leave of
absence because he had accepted a position with the National Railroad Passenger
Corporation (Amtrak) on February 1, 1979. Inasmuch as Claimant had a residuary
employment relationship with the Carrier, the Carrier retained the power to
discipline Claimant especially when he allegedly committed the offense when he was
still performing active seivice for the Carrier.
The basic facts underlying the fraud charge are uncontested. Both
the Chief Dispatcher and the Carrier's Atlanta Ticket Agent expressly told Claimant
that to could not claim one week of working vacation pay on the Carrier's
January, 1979 payroll. Nonetheless, Claimant informed the Payroll Department
that the pay records for the first half of January should be corrected to slow
that Claimant worked five days of vacation. When a payroll clerk requested
written confirmation, Claimant dispatched a letter to the Payroll Lepartment over
the Ticket Agent's signature (followed by odd initials) on January 31, 1979.
Claimant sent the letter without the Ticket Agent's knowledge. The letter served
Locket Number CL-23966 Page 2
its purpose since Claimant later received vacation pay as well as overtime pay
for ostensibly working a vacation in January. During a routine earnings audit
in February, a Labor Relation's Analyst discovered that Claimant had received
an extraordinarily large amount of pay for January. The high sum served to
inflate Claimant's test period average earnings which is used to compute his
guaranteed compensation rate pursuant to the Appendix C-1 employee protective
conditions. The Analyst contacted the Atlanta Peachtree Terminal and the Payroll
Department to ascertain how Claimant received in excess of $2,100.00 in wages
for January, 1979. As the result of the Analyst's inquiry, the Payroll Department
discovered the January 31, 1979 correspondence. Claimant admitted that he
wrote the letter without authorization.
The record contains substantial evidence that Claimant obtained one
week of vacation pay under false pretenses. He deliberately deceived the Carrier
despite prior admonitions that he could not report a corking vacation in January.
Since he signed the January 31, 1979 letter with the Ticket Agent's name followed
by misleading initials, Claimant attempted to conceal his faudulent actions.
The Carrier established that Claimant was dishonest and committed conduct unbecoming
an employe.
The Organization also contends that the discipline was excessive in
light of Claimant's many years of good service. Claimant, the Organization
points out, wanted to repay the money he misappropriated from the Carrier. We
have carefully weighed Claimant's good work record against the gravity of his
offense. This Board does not find any justification for reducing the penalty.
Claimant only offered to make restitution after the Carrier discovered his
fraud and amassed the evidence against him. In addition, length of service
standing alone, is an insufficient mitigation for fraud and defalcation.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties
to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
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:/ _ ,,cJ~Nancy ver - Executive Secretary
Dated at Chicago, Illinois, this 30th day of April, 1984
