Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28157
THIRD DIVISION Docket No. MW-28425
89-3-88-3-216
The Third Division consisted of the regular members and in
addition Referee Charlotte Gold when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Rail Grinder Foreman J. B. Boadurant for
alleged violation of General Rules A, D, L, 607(4), 609 and 613 of Form 7908
on September 8, 1987 was without just and sufficient cause and in violation of
the Agreement (System File 1507-48/871002).
(2) The Claimant shall be reinstated with seniority and all other
rights unimpaired, his record shall be cleared of the charges leveled against
him and he 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 employs 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.
Following a hearing held on September 25, 1987, Claimant, a Lead Rail
Grinder, was dismissed from Carrier's service. Claimant had been accused of
using a Company fuel purchasing ticket to pay for $10 to $20 worth of gas put
in a private vehicle owned by a gang member. Claimant was observed by a local
police Sergeant paying for the gas purchased for both Carrier vehicle and for
Mr. Guerrero's car with a single GELCO Rapid Draft. Claimant and Guerrero,
together with a third employe, who had been instructed to put the gas in Mr.
Guerrero's car, were the subject of the investigation held on September 25.
Form 1 Award No. 28157
Page 2 Docket No. MW-28425
89-3-88-3-216
While Claimant was dismissed from service, the other two men were
each assessed a sixty-day actual suspension. At the time of his dismissal,
Claimant had been employed by Carrier for seven and one-half years. Claimant's past record indicates
for safety rule violations. The other men had clean past records. Carrier
believes that the difference in the discipline assessed the three men is
warranted because of Claimant's past record and because he was in a leadership
position and therefore must suffer the consequences.
Under normal circumstances, this Board would be inclined to endorse
the proposition that similar offenses warrant similar discipline and we would
assess him the same discipline given the other two employes.
We note from the transcript of the investigation, however, that there
was some question raised about the fact that a copy of the transaction was not
found in Claimant's draft book. Carrier suggests in its Submission that Claimant destroyed or dispos
an intent to obscure what took place. At the same time, Claimant's past record is not unblemished.
Under these circumstances, we shall reinstate Claimant to service
with all rights intact but without backpay. This suspension for time held out
of service should be sufficient to impress upon him the seriousness of his
actions and warn him that the misuse of Company funds, even if not for his own
personal benefit, will not be tolerated in the future.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
e:~Zv,_ e~
Nancy J. r -Executive Secretary
Dated at Chicago, Illinois, this 16th day of October 1989.