Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27843
THIRD DIVISION Docket No. MW-26511
89-3-85-3-250
The Third Division consisted of the regular members and in
addition Referee Martin
F.
Scheinman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation
(Amtrak) - Northeast Corridor
STATEMENT
OF
CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The thirty (30) days of suspension imposed upon Foreman J. F.
Murter for alleged violation of
'...
RULE V
... RULE Y ... RULE I,
NATIONAL
RAILROAD PASSENGER CORPORATION, RULES OF CONDUCT
...'
and upon Lineman E. F.
Gilliam for alleged violation of 'RULE H
...
RULE V
...
RULE I' was without
just and sufficient cause and on the basis of unproven charges (System Files
NEC-BMWE-SD-809D and NEC-BMWE-SD-806D).
(2) The claimants' records shall be cleared of the charges leveled
against them and they shall be compensated for all wage loss suffered."
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.
The circumstances leading to this dispute arose during the night of
November 18-19, 1983, when Claimants were called to clear ET wires which vandals had cut and allowed
cleared, Claimants proceeded to a junk yard, Clinton Metals, to dispose of the
scrap wire. As a result, Claimants were disciplined for unauthorized sale of
such scrap wires.
The Organization contends that Carrier's imposition of discipline was
improper. It asserts that Claimant elected to take the scrap wire to the junk
yard for disposal instead of leaving it available for thieves. Since Carrier
has not presented any evidence to support the contention that Claimants improperly disposed of the w
Form 1 Award No. 27843
Page 2 Docket No. MW-26511
89-3-85-3-250
Carrier, on the other hand, insists that the employees attempted to
appropriate the monies from the sale of the scrap wire for their personal use
and it was only because of a police investigation that they developed a story
to substantiate their behavior. Under these circumstances, Carrier argues
that Claimants were properly found guilty as charged. In light of their employment records that reve
thirty (30) day suspensions were lenient. Thus, for the foregoing reasons,
Carrier asks that the Claim be denied.
After reviewing the record evidence, it is clear that the essence of
Carrier's charge involves dishonesty for the unauthorized sale of scrap wire.
To prove dishonesty, Carrier must show substantial evidence of an intention on
the part of Claimants to act in a dishonest manner. No such evidence has been
produced by the Carrier in the record.
However, although the evidence is not sufficiently convincing to
satisfy the Board that Claimants are guilty of dishonesty, discipline must be
imposed for the improper manner in which they handled the circumstances.
Clearly, Claimants acted improperly. They knew so. They are culpable. In
all, we are persuaded that the discipline of Claimant Mutter shall be reduced
to a 20 day suspension, and Claimant Gilliam to a 15 day suspension for their
proven misconduct.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 13th day of April 1989.