1. Carrier violated the terms of the current Agreement, particularly Rule 21, when it dismissed from service Mr. R. Miller, Ticket Clerk, account of investigation held on March 1, 1982, and,
2. Carrier shall he required to reinstate Mr. R. Miller with all rights unimpaired, and compensate him for a1L losses commencing on the date he was dismissed, including fringe benefit entitlements and continuing until the violation is corrected.
Clerk. At the time of his discharge, he had twenty-eight months of service with the Carrier. On February 19, 1932, Claimant was assigned to work at one of five open ticket windows at Carrier's Chicago, Illinois Passenger Terminal as one of twelve Clerks assigned to his shift.
Claimant's duties were to issue tickets to rustomers and receive payment for the tickets. He was required to account for all tickets sold and to turn in to the Carrier aL1 ticket stubs and cash and checks received, together with a daily report of his transactLons and receipts. To identify each Clerk's transactions, the Clerk is assigned a number an(' furnishe-1 with a stamp on which the number appears. 'rickets and checks handled ,y that Clerk are stamped by him or her with the number. On the day in qnostior, Claimant was assigned number 54. \o other Clerk was assigned that number on that 4ate.
On February 19, 1982, Claimant reported selling $'1,(159.711 of tickets. Ile turned ticket stubs representing that amount of tickets and cash and checks in the amount of the ticket stubs plus ninety crnts. (n his worksheet tape for that date, Claimant reported having received a check in the amount of $49.00. Claimant's report did not indicate that he had sold a ten-ride ticket to/from Crystal Lake, the onty single ticket in the Chicago subdivision which sold for 549.00, nor did it indicate any ticket sales to either of the other locations for which $40.00 fares were offered.
Subsequent to February 10th, in a routine audit of the sales of that date, the Carrier discovered a numbered stub for a ten-ride ticket to/from Crystal Lake to be missing. It reviewed the deposits of that date and found two $49.00 checks had been received. The checks were retrieved and the Clerk numbers stamped on each were compared against the Clerk report. one check was reflected by a corresponding sale in the report of the Clerk who sold it. The second, taken by Claimant, was not supported by a sale of any ticket for $49.00.
Iiad Claimant's record of ticket sales included the ten-ridr Crystal Lake ticket, the cash receipts he turned in fur the (late in question would have been $48.1() short; he would havo owed $49.0() more.
The Carrier then contacted the passenger who drew the check, who indicated that lie had, indeed, purchased a ten-ride Crystal Lake ticket from Claimant on the date in question. The Carrier recovered the. ticket, which was the ticket represented by the missing stub. Claimant's validator stamped number was on both the ticket and the check.
After notice to Claimant., the Carrier conducted an investigatory hearing concerning the incident and, based on the results of that hearing, dismissed Claimant for failure to account for the ticket in question. No specific rule was cited in the notice of discharge, although at the hearing, the Carrier cited Rules 7 and q from Carrier's Safety Book, which state in relevant part:
following Claimant's dismissal, the Organization filed with the Carrier a claim for reinstatement and restoration of wages and benefits. The Carrier ('enied the Claim and, following unsuccessful apneals, the Organization hrou^ht the Claim before this Board.
The Organization argues initially that the Claim must he sustained because the Carrier failed to afford Claimant a Fair hearing, since the co-hearing officer had participated in the investigation of the incident. The Organization's argument in this regard must he rejected. There is no indication as to the nature or extent of the co-hearin, officer's participation in the investigation and no inr;ication that the other co-hearing officer had participated in the investigation.
There is, in anv event, no indication that the Claimant was in any way preiudiced in the presentation of his case, in that he was not denied the onportunity to present evidence or question witnesses. Under such circumstances, the Roard has held that the rights of Cta·cnants are not violated. See, e.g., Third Division ,Award 25037, ("There is no evidence that Claimant was deprived of opportunity to refute the charges or to offer into evidence any facts or circumstances in mitigation of his actions ... the Board does not find that Claimant's rights have been violated by the manner in which the hearing was conducted.")
The Organization also asserts that Claimant was charged only with failure properly to account for funds hiet was penalized for theft. Clearly, failure properly to account for fends may he the result of a variety of actions, one of which is theft by the emnlovee accused. Until the investigation is completed, the Carrier need not characterize the nature of the events which occurred, and the failure to do so is not grounds to set aside the penalty, so long as the employee is notified of the precise circumstances which form the basis for the investigation and the general nature of the Carrier's concern. The Board concludes that the notice to Claimant here was snfficientiy specific to satisfy the Carrier's burden and does not constitute ,grounds on which to sustain the claim.
With respect to the. merits of. the dispute, the Organization contends that the Carrier did not meet its burden of proof, in that the record revealed a number of possible explanations other than Claimant's removal of either money or the ticket stub. The Organization points to limits on the Carrier's investigation, since two other tickets were also missing and the agents were, in total, $56.00 over for the day in question, and to the lax security and storage procedures under which another person might have had access to Claimant's cash drawer or tickets anew might have utililzed Claimant's number on ticket transactions.
The Board concedes the theoretical possibility that one or more of the events hypothesized by the or ,^-anization could have occurred. However, the Carrier was authorized to base its determination on the probabilities of the Claimant's guilt. The Board, on review, cannot conclude that the Carrier was arbitrary or capricious in concluding that the arguments made by the organization did not create reasonable doubts that Claimant convPrted money in the amount in nuestion to his nun use. Tt was simply too remote a possibility that ill fhe factors - the check and ticket with CLaim.ant's stamp and Claimant's failure to report the site - would nave reslitted ;rpm the explanations proposed r,v the, Oryanizatinn.
The Carrier has t`ic ri,%i,t to .,xl·(·ct ahsotei(e honesty on the part. of its emplnvees, p:erticularlv those who are directly entrusted with collecting: its funds from the public. Board ppeeedent is clear that !,r,ach of an employee's duty i.n that regard may properly resulr in discharve. See, e.g., Third Division ,wards 25042, 25041 and ?4993. Claimnnt's relatively slort service offers no 1)asis to mitigate the penalty.
Since the Beard coneLudes theft th,.· Carrier's determination is not arbitrary or capricious and the penalty not excessive, the claim must he, and it is, denied.
That the Carrier and the Emploves involved in this dispeite are respectively Carrier and Employes within the meaning of the Railway Labor Act as approved June 21, 1934;