Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36005
Docket No. SG-36324
02-3-00-3-567
The Third Division consisted of the regular members and in addition Referee
Ann S. Kenis when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Union Pacific Railroad Company:
Claim on behalf of S. A. Brubaker, for reinstatement to service with
compensation for all lost time and benefits and that the discipline be
removed from the Claimant's personal record, account Carrier violated
the current Signalmen's Agreement, particularly Rule 68, when it
dismissed the Claimant from service without the benefit of a fair and
impartial investigation, and without meeting the burden of proving the
charges against him in connection with an investigation held on October
13, 1999. Carrier's File No. 1204047. General Chairman's File No.
SWGC-2061. BRS File Case No. 11326-UP."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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 were given due notice of hearing thereon.
Form 1 Award No. 36005
Page 2 Docket No. SG-36324
02-3-00-3-567
The Claimant was assigned to the position of Signal Foreman with headquarters
at Martinez, California. In a letter dated October 6, 1999, the Carrier issued the
Claimant a letter directing him to attend an Investigation to:
" . . . develop the facts and place responsibility,
if
any, regarding that
while on vacation between August 9, 1999 and August 27, 1999 you
allegedly used a company vehicle without authorization and made fuel
purchases out
of
state. Also on September 30, 1999, you allegedly used a
company vehicle, which you altered without authorization to haul your
fifth wheel trailer from Martinez to Truckee where you parked it in a
company trailer park without authorization, and you were seen by Signal
Maintainer J. Stahlman on October 1, 1999, approximately 12:30 p.m.
with your family in the company vehicle."
The Investigation was conducted on October 13,1999. On October 29,1999, the
Claimant was dismissed from service.
The Claimant did not deny the charges against him, and the Board agrees with
the Carrier that there is substantial evidence to establish that the allegations have been
proven. While we do not condone the Claimant's actions, there are mitigating
circumstances in this case which merit consideration. The Claimant has shown himself
to be a highly cooperative, competent employee. His 20 years of service with the
Carrier have been exemplary. Moreover, the record indicates that there were
extenuating circumstances present which were not considered by the Carrier in
assessing the penalty imposed.
For these reasons, the Board concludes that dismissal was excessive. The
termination will be converted to a suspension without pay or other monetary benefits
for the duration of time covered by the dismissal.
AWARD
Claim sustained in accordance with the Findings.
Form 1 Award No. 36005
Page 3 Docket No. SG-36324
02-3-00-3-567
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an award favorable to the Claimant(s) be made. The Carrier is ordered to make
the Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 16th day of April, 2002.