Form 1 NATIONAL IL AD ADJUSTMENT



                                        Docket t No. MW-38018

                                        04-3-03-3-397


The Third Division consisted of the regular members and addition Refere Joan Parker when award was rendered.

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE,-.
                  (Florida East Coast Railway Company, L.L..


STATEMENT CAF CLAIM:
      "Claim of the System Committee of the brotherhood that:


          (1). The dismissal of r. P. . Clarke on December 9, 2002 in connection with charges alleging a was disloyal, dishonest and violated Company rules, after being relieved from duties o

          August 4, 2002 and in connection with the alleged excessive costs in the amount of five hundred ninety-four dollars and twenty-three cents ($594.23) which were chargeable to the Nextel assigned to him during the billing period August 2

          throwgh September 4, 2002 was arbitrary, capricious, on the basis of unproven charges and in violtin of the Agreement.


      (2) s consequence of the violation referred tin Part (1) above,

        all references t0 this discipline shall be stricken fro r. P.

        Clarke's record and he shall a reinstated to servicwital

        rights an benefits restored n compensated for all lost

        wages..

              "


FINDINGS:
The Third Division of the Adjustment o, un the hole recur an all theevidence, fin s that:
 Form 1 Page

 Award N.7 7
 Docket o. -801
 0--0-3-397

 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 Ac as approved June 21,1934.

 This Division, f the Adjustment Board. has jurisdiction ver the dispute involved herein.

      Parties to said dispute were given due notice of hearing thereon.


The Claimant, a Track Foreman with about four years' seniority, was charged in a letter dated August 7, 20pwith sleeping on the job (having covered eyes and face with his hands at a Rules meeting) and then having failed to respond to his supervisor's questions. Pending the results of the Investigation, that as held on August 20, the Claimant was withheld from service. Following the Investigation, the Carrier dismissed the Claimant is letter dated September S, 2002 having found that he had slept on the job.

 In the September S letter dismissing him, the Carrier directed the Claimant to "return all Company supplies in your possession, following which arrangements ill be de to pay you any movies due." In addition, Carrier Special Agant Sacramento spoke on the telephone several times with the Claimant, trying t arrange a meeting t hick he could pick up the Carrier's extel cell phone that had been issued to him, but was unable to make mutually acceptable arrangements.. Sacramento also left several telephone m essages for the Claimant, directing him to return the cell phone, but the Claimant failed to do so.

 After the Carrier received the bill for the Netl cell phone covering the period July 25 to August 2, it rote the Claimant a letter dated November 1 , 2002 advising i that $817.98 in personal calls had been made n the cell phone, and
 had bee deducted, fro i e him. The letter also quoted ale , is
 provides i pertinent arty

 hen leaving the service r when requested y proper authority, they [employees] must return all company property. Employees must not use company roper for their personal use. ® . ."
 Form 1 Award o. 37274
 Pe 3 Docket o. -3s01
                                              04-3-03-3-397


Because the Carrier did not confront the Claimant with the unauthorized telephone charges within the time limits set forth in the Agreement, and because the Claimant already had been dismissed, it informed the Claimant that it would take no disciplinary action against him at that time.


With respect to the Claimant's next NexteI cell phone bill in the amount of X594.23, however, covering the period August 25 to September 24, 2002 the Carrier decided to pursue possible disciplinary action. Py letter dated November 21 sent certified mail, return receipt requested, the Carrier notified the Claimant of an Investigation on December 4 with respect to .a charge that he had been disloyal, dishonest, and violated Carrier Rules y continuing to use the Company's extel cell phone after being relieved of his duties on August 4, 2002. Attached to the November 21 letter was a form to be completed by the Claimant advising whether he wanted to have a representative from the Organization appear on his behalf at the Investigation. Neither the Claimant nor a representative from the Organization attended the December 4 Investigation, which proceeded in their absence.


PY letter dated December 9, 2002 the Carrier notified the Claimant that h was dismissed again because a had been found guilty as charged of having continued to use the Nextel cell phone after a had been relieved f duties, running p

excessive costs in the amount of X594.23. Two days later, on December 11, 2002 the Claimant telephoned Gloria S. Taylor, the Carrier's Director of Human Resources Department/Labor Relations, complaining that a had not receive the November 21 Letter notifying him of the Hearing. (The return receipt confirms

that the Claimant did not sign the receipt for the November 21 letter until December. 11.) In response to s. Taylor's question why the Claimant root pick up t

November Zl letter until December 11, a replied that he had not received any prior notice f the certified November 21 letter. Taylor then told the Claimant that she would reschedule the Investigation if a provided her with a copy f the envelope for the November 21 letter, provided notations by the Post Office on the letter did not shoes that it had made prior attempts to sliver the letter. Because the Claimant failed to produce a copy of the envelope, the Carrier i not reschedule the Investigation.


      In a December 1, 2 0 letter, the Organization appealed the Claimant's

Decemberdismissal. The Carrier denied tpel.
 Forte 1 Award o. 37274
 Page 4 Docket t No. MW-38018
 04-3-03-3-397
 The Organization contends that, contrary to the requirements of Rule 12()
 the Carrier failed to give the Claimant a fair and impartial Investigation because e
 did not receive notice of the Investigation until a week after the December , Z002'
 Investigation. Rule 12(g) governs the adequacy of Notice of Investigation., and
 provides that notice shall be deemed to have been effected when a certified envelope
 . is delivered to the U.S. Post Office, with the time limitation commencing on the date
 stamped by the U.S. Post Office:
 "() Notice of the hearing, stating the charge or charges, will be
 given to the employee, with copy to the Organization, in writing, at
 least one hundred and twenty (120) hours prior to such hearing. It
 is understood that the Company will not discuss the charge or
 charges with the Organization unless and until the employee has
 notifled the Company that the Organization will represent him t
 v the investigation.

      Employees will be required to advise, in writing at the time f receiving notice whether or not they desire a representative of the Organization to represent them or not.


      Notice of the investigation to the employee shall a considered being accomplished when a certified envelope is delivered o the U. S. Post Office and the ninety-six (96) [sic] - hour period ill be counts

      from the time and date stamped by the U.S. Post Office."


e note that the "ninety-six X96) hour, period" appears the a typographical error and should probably read `hone hundred twenty (120) hour period," as Rule, l ( ) earlier makes reference to a 120-hour period, as does Rule 12(d):


In any event, the receipt fro the U. S. Post t Office showed that the November
 1 certified letter as ailed onovemer 21, far more than 120 hours (or 96
 ours) prior to the December 4, 2002 Investigation. Accordingly, under Rule 12( )
 tics of the Investigation as effectuated in a timely fashion. Moreover, although
 the Carrier had satisfied the requirements f Rule 12( ) it offers to rescedult
 Investigation if the e Claimant produced a copy of the envelope accompanying the,
 November in that prior attempts deliver it a not beenads.
 Form 1 ward o. 37274
 Page 5 Docket No. -341
                                              04-3-03--397


Because the Claimant never produced for the Carrier a copy of the envelope, a is hardly is position t0 claim that a was denied fair and impartial Investigation.


The Organization also submits that the Carrier failed to comply with Rule 12Cc) which provides that the Carrier may not charge an employee with a violation

v relating to any mutter of which the Company has had knowledge for 21 days or more. Because the Nextel bill for which the Claimant was changed with improper use covered the period August 2to September 2, the Organization contends that it is *inconceivable that the Carrier did not receive the bill more than 1 days prior to November 21, the date of the letter, charging the Claimant with the offense. The Organization, however, filed to produce any evidence to support its argument. Indeed, the bill in question is dated November 1, 2002. Although the Organization . surmises that the November 1, 2002 date, which is handwritten, was inserted y the Carrier,

it can cite no supporting evidence. Accordingly, the Board must reject the Organization's argument.

 No more persuasive .is the Organization's argument that the Carrier failed to meet its burden of proving that the Claimant ran up unathorizecosts of $594.23 during the period August 25 through September 24, 2002. The Carrier provided documentary and testimonial evidence that $594.23 was charged the Nextel cell phone issued to the Claimant after a ha been relieved from his duties August 7, 002 that on several occasions it directed the Claimant to return the phone, an that the Claimant failed to o so. Indeed, the Claimant ignored the Carrier's multiple requests to return the cell hone, and continued to run up personal charges n the phone.

 No doubt, because the Claimant had been dismissed for sleeping the job,
 e id not feel deterred fro continuing is unauthorized use of the Nextel cell
 hone. Because that dismissal s overturns in a companion case, however, his
 ise of that cell phone after he was relieve fro service as taken n e
 significance. The Claimant's failure to return the Nextel cell phone, combined it
 his running a additional unauthorized personal charges the amount $594.23
 constituted serious offenses. Indeed, the Carrier's decision to dismiss the Claimant
 for these offenses cannot a termed arbitrary, capricious an us f discretion.
 Form 1 Agar o. 37
 Page 6 Docket loo. .-0l
 0--0--397

                        AWARD


      Claim denied.


                        O


This Board, after consideration of the dispute identified above, hereby. girers that an Award favorable to the Claia.n() not be made.

                        NATIONAL LOAD ADJUSTMENT BOARD y Order of Third Division


Dated t Chicago, Illinois, this 5th day of November o4o