Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27892
THIRD DIVISION Docket No. MW-28219
89-3-88-3-41
The Third Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Sectionman C. A. Gonzales for alleged violation
of Rule 575 on or about March 6, 1987 was arbitrary, capricious, unjust and in
violation of the Agreement (System File BN-87-15/DMWD 870717).
(2) The Claimant shall be reinstated to service with all seniority
and other rights unimpaired, he shall have his record cleared of the charge
leveled against him and he shall be compensated for all wage loss suffered,
all in accordance with Rule 40 of the Agreement."
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.
Claimant was employed as a sectionman by the Carrier. On April 13,
1987, Claimant was directed to attend a formal investigation in connection
with the charge:
"for the purpose of ascertaining the facts
and determining your responsibility in connection with your alleged unauthorized removal of
Burlington Northern Railroad ties from Wheatland
Depot, Wheatland, Wyoming on or about March 6,
1987, which was first made known to Superintendent's Office at 1:00 P.M., April 13, 1987,
Denver, Colorado."
Form 1 Award No. 27892
Page 2 Docket No. MW-28219
89-3-88-3-41
The hearing took place on April 21, 1987, and as a result, Claimant was dismissed from service.
behalf, challenging his dismissal.
This Board has reviewed the evidence and testimony in this case, and
we find that there is sufficient evidence in the record to support the finding
that the Claimant was guilty of theft for removing ties from the Cartier's
property and trading them to another individual in exchange for a hog. Said
action can clearly be considered theft, and Claimant's explanation that he was
intoxicated at the time does not constitute a valid excuse.
Once this Board has determined that there was sufficient evidence in
the record to support the guilty finding, we next must turn our attention to
the type of discipline imposed. This Board will not set aside a Carrier's
imposition of discipline unless we find the action to have been unreasonable,
arbitrary, or capricious.
Theft of Carrier's property has been found to be a dismissible
offense on numerous occasions in the past by both this and other Boards.
Given the nature of the wrongdoing, we cannot find that the action taken by
the Carrier was unreasonable.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J. -Executive Secre ary
Dated at Chicago, Illinois, this 4th day of May 1989.