(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Trackman J. A. Shimley, Jr., for alleged 'misuse of Company facilities, in that you incurred expense to Consolidated Rail Corp. through third party billing to Conrail telephone when not authorized nor conducting railroad business' on December 4, 5, 6, 9, 12, 15, 16, 20, 21, 26, 1982 and January 5, 1983, was excessive, unreasonable and unwarranted (System Docket CR-366-D).

 (2) The claimant shall be reinstated with seniority and all other rights unimpaired, the charges leveled against him shall be removed from his record and he shall be compensated for all wage loss suffered".

 OPINION OF BOARD: Claimant J.A. Shimley, Jr., was employed as a Trackman by
 the Carrier, Consolidated Rail Corporation. Claimant has
 seniority dating from May 1, 1974. On July 27, 1983, Claimant was notified to
 attend a hearing in connection with the following charge:

After two postponements, the hearing was held on September 12, 1983. On September 16, 1983, < Claim on Claimant's behalf, challenging his dismissal.

 The organization contends that the record establishes that Claimant fully cooperated with Carrier in resolving and reconciling all alleged discrepancies due to the erro The Organization asserts that Claimant placed telephone calls to correct problems with his sickness on his understanding that the calls were railroad-related business. The Organization points out that Claimant was willing to and did make full restitution to Carrier for th
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                      Docket Number MW-26174


The Organization further asserts that prior to notice of the charges, Claimant was not aware that other individuals had used his home phone to bill telephone calls to the Carrier. Moreover, Claimant did not give Carrier's phone number to his wife for the purpose of having her bill phone calls to Carrier, but gave it to her so that she could reach him at work. Claimant's wife billed calls to Carrier without Claimant's knowledge.

 The Organization asserts that a review and analysis of the record will establish that the testimony introduced at the investigation does not justify the discipline assessed against the Claimant. The organization maintains that this Board con capricious, improper, and unwarranted, then the discipline cannot stand. The Organization therefore contends that the Claim should be sustained: Claimant should be reinstated with seniority and all other rights unimpaired; the charges should be removed from his record; and he should be compensated for all lost wages.

 The Carrier initially contends that the Claim is procedurally defective and should be dismissed Carrier argues that Claimant admitted his guilt at the hearing; this Claim, therefore, is a request for leniency. The Carrier asserts that it is axiomatic that where a request finding of guilt or the measure of any sanctions; the remission of an appropriate sanction on the ba Board therefore cannot properly consider the merits of the Claim.

 The Carrier further argues, without waiving the procedural objection, that the Claim is without merit. The Carrier points out that Claimant admitted his guilt and was dis the investigators establishes that Claimant was guilty as charged. The Carrier further contends that the testimony of Claimant's wife is irrelevant: she has a personal stake in her husband's employment and Claimant is guilty of the charges. Carrier therefore asserts that it met its burden of proof; the sole remaining issue is whether the assessed discipline is justified.

 The Carrier argues that Claimant's offense is not minor, but constitutes the major offense of th employe who steals from an employer is a proper and inevitable response. The Carrier points out that dismissals in such cases consistently have been upheld, even where the emplo contends that the assessed discipline was fully justified.

 The Carrier also contends that if this Board should sustain the Claim, then Claimant's recovery would be limited by Rule 27, Section 4 of the Agreement, which provides:

        "If a disciplined employee is exonerated on appeal, the discipline shall be stricken from his record. If an employee has lost time due to such discipline, he shall

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                      Docket Number MW-26174


        be paid the difference between the amount he would have earned had he not been disciplined and the amount he earned or received during the discipline period".


The Carrier ultimately contends, however, that the Claim is without merit and should be denied in its entirety.

 This Board has reviewed the evidence and testimony in this case, and it finds that the Carrier has offered sufficient evidence to prove the Claimant guilty of the charge telephone calls to the Carrier's telephone when he was not authorized to do so and when he was not conducting railroad business. Most of the evidence is undisputed, and the Claima the Carrier for those telephone calls.

 Once this Board finds that there was sufficient evidence in the record to find the Claimant guil attention to the discipline imposed by the Carrier. Generally, this Board will not set aside a Carrier's imposition of a particular type of discipline unless the Carrier's action is unreasonable, arbitrary, or capricious. In this case, at the time of the incident in question, the Claimant had accumulated over eight and one- one time in 1981 for excessive absenteeism. In the case at hand, the Claimant admitted his wrongdoing, offered some explanation for it, and repaid the monies to the Carrier. This was not the type of case where the ultimate discipline--termination--was that the Carrier's action in discharging the Claimant for the wrongdoing for which he was found guilty was unreasonable and arbitrary, and the Claimant's discharge is hereby set aside and reduced to a lengthy suspension. Termination is just not appropria without pay for time lost.

 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 discipline was excessive.

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                      Docket Number MW-26174

                      A W A R D


        Claim sustained in accordance with the Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest:
        ancy J. Executive Secretary

        :M'Y*jC X~-


Dated at Chicago, Illinois this llth day of June 1986.