C:\MYDOCU~1\SCHEDU~2\3-27323.htm

FORM 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27323
THIRD DIVISION Docket No. CL-27336
88-3-86-3-553
The Third Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood (GL-10114) that:

(a) Carrier violated the Clerks' Agreement at Vaughn, New Mexico, when on April 22, 1985, it dismissed J. M. Trujillo from service, and

(b) Facts developed at the formal investigation held on April 22, 1985, failed to sustain Carrier's alleged charges and did not justify or warrant the harsh penalty imposed, and

(c) J. M. Trujillo shall now be reinstated to service of the Carrier with all rights unimpaired and paid for all monetary loss sustained as a result of being discharged
(d) J. M. Trujillo shall be paid an additional twelve per cent (12%) per annum until claim is paid."

FINDINGS:

The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

At the threshold Carrier maintains that this claim is time-barred due to delayed appeal from initial denial. The Organization contends that Carrier officials granted oral waivers of the time limits and urge also that the hearing and investigation w -appellate officers. The Board has reviewed these contentions and finds it appropriate to determine the case on its merits without necessarily resolving the countervailing procedural/jurisdictional arguments of the Parties. Claimant was terminated follo found him guilty as charged for misappropriating and converting to his own use some 62 listed items of Carrier property, to wit:
Form 1 Award No. 27323 Page 2 Docket No. CL-27336 88-3-86-3-553 1. 1 8-lb. sledge hammer 2. 1 12-lb. sledge hammer 3. 375 8 1/2" x 11" envelopes 4. 169 10 1/2" x 14" envelopes 5. 399 7" x 10" envelopes 6. 55 3 5/8" x 6 1/2" envelopes 7. 62 9" x 12" envelopes 8. 1 box "Bostitch" staples 9. 1 "Conger" switch lantern

10. 1 "Timesaver" 18-in. horsehair broom brush

11. 7 "Lakeside" yellow 10-minute fusees

12. 4 "Lakeside" red 10-minute fusees

13. 2 "Standard Rwy" torpedos

14. 2 90-lb. guard rail C-clamps

15. 1 90-lb. switch connection rod 6 connector

16. 5 90-lb. heel blocks for switch points

17. 2 90-lb. frog heel blocks

18. 1 90-lb. guard rail spacer block

19. 9 pieces of scrap rail and one scrap switch rod

20. 3 scrap water buckets, marked "ATSF"

21. 2 66" x 1 1/2" lining bars

22. 3 tubes 3-oz. "Dixie" drinking cups

23. 1 roll of tissue paper

24. 1 24-in. pipewrench, Ridge Brand, marked "ATSF"

25. 1 new insulated end post, 136-lb. rail "SF CO"

Form 1 Award No. 27323 Page 3 Docket No. CL-27336 88-3-86-3-553 26. 1 "Slaymaker" S-1 padlock, ATSF, keys 27. 4 ballast forks - 1 new and 3 used 28. 3 square shovels 29. 1 "Lenox" hacksaw and blade 30. 1 Carman's oiler, 2-gallon 31. 1 Carman's oiler, 1-gallon 32. 1 18-in. chisel bar, marked "ATSF" 33. 2 pr. welding gloves, green 34. 1 yellow ATSF hardhat 35. 1 blue flag 36. 1 yellow flag 37. 1 red flag 38. 1 journal brass packing hook 39. 1 hardhat winter cap liner 40. 1 mop wringer 41. 1 mop bucket on wheels 42. 2 Santa Fe 1927 Std. books 43. 4 Santa Fe 1014 Std. books 44. 2 Santa Fe duplicate message books 45. 1 cordless jack circuit box 46. 1 Dispatcher phone 47. 1 alloy chain, 8-ft. x 5/8-in., heavy duty 48. 2 heavy-duty chain hooks 49. 1 6-pack drinking water, "Adams Ale" 50. 1 18-in. horsehair brush broom head Form I Award No. 27323 Page 4 Docket No. CL-27336 88-3-86-3-553 51. 2 11-ft. switch ties 52. 1 8-ft. cross tie 53. 3 1/2 bridge timbers 54. 1 white Company hardhat, used

55. 1 Company first aid box, 8" x 5 1/2" x 6"

56. 1 gallon oil can, used, marked "ATSF"

57. 1 coal hod bucket, used

58. 1 square shovel, used, marked "ATSF"

59. 1 spike pulling bar

60. 1 tie thong, "Hubbard" brand

61. 1 pick and handle, marked "ATSF"

62. 1 "Slaymaker" brand S-1 padlock, new

Even allowing that some of those items might have been property in Claimant's possession for use at work, by his own admission the majority of the items were "stolen" by him from Carrier. There can be no doubt on this record concerning his culpability for serious misconduct which traditionally has warranted the discharge penalty. Even if, arguendo, Claimant's proven guilt did not warrant the extreme penalty for an employe with such long service, a review of his prior record shows a suspension and four previous dismissals with leniency reinstatments, one for stealing Carrier property. Given the plainly proven facts of record, this claim must be denied.

A W A R D

Claim denied. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attest: Nancy J.,,Dv - Executive Secretary Dated at Chicago, Illinois, this 30th day of August 1988.