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 Award No. 37598
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                  Railroad Company).


STATEMENT OF CLAIM:
      "Claim of the System Committee of the Brotherhood that:


      (1) iisal or. . Michaelis for alleged violation f

        Maintenance f y Operating l1.- Safety, Maintenance

        f y Operating - Furnishing Information,

        Engineering Instructions Rule 21.6.1 Weekend Lodging and

        Engineering Instructions 2 .1 Lodging Procedures (General) i

        connection with alleged failure to comply with the BNSF

        corporate Lodging Policy and alleged fraudulent use of

        company provided lodging ails Inn i s ,

        Montana J e e 11, 2 arbitrary,

        capricious, unwarranted, excessive and in violation of the

        Agreement (System file T- -1- /11- - 2 1

      ~2BNR).

      s a consequence of the violato

      r. . Michaelis shall now `. . . i lost time, f

      l1, 2 until a is returned t ice, including t not

      limited t any 11 overtime i junior assigned nsitio in his absence, any expenses lost and we also

        request that Mr. Michaelis be made whole for any and all

        beneflts, we also request Mr. Michaelis receive accreditation

        for all beneflts derived from days worked or monies earned,

        (i.e. vacation, lump sy, ri retir

        its a i c if a reference y t

r 1 r
 age Docket . - 7
 0 - ®- -0
 discipline set forth in the July 1 , 2003 letter from Division
 Engineer Time . app. "'

 FINDINGS:
The Third Division of the Adjustment t 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 otil Labor c s approved June 1,1934.

      This Division e Adjustment Board s jurisdiction vis to

involve rein.

      Parties to said dispute were given due notice of hearinteren.


t the time his dismissal, Claimant . Michaelis was a 13-year Trac
 Welder headquartered at lenive, Montana. Following n Investigation held
 June 27, 20 a as dismissed letter ate July 1, 2003 for dishonesty
 involving the Carrier's lodging policy an related misconduct.

 The circumstances leadin the Carrier's action are straightforward. Fro
 June 2 through , 2 , the Claimant was ssine to wrk i the viini
 Forsyth, Montana, some 125 miles fro lenive :300 miles from his e i
 Bismarck, North . While so or ' g the Claimant s entitled to Crrir
 i lodging. Accordingly, arrangements had been made for him to stay at the Rails
 I 1 otel in Forsyth through Inter Motel Leasing (IML) as required.

 According to the record before the Board, the Claimant had traveled to
 rsytriving a any welding truck, transporting is motorcycle r
 Bismarck, ere it been parked ver the previous weekend, an picking u
 fellow workers en route from Bismarck to Forsyth. He then worked four ten-hour
 s prior t rest s scheduled Friday, June , through Sunday, ,
 after is a planned start one-week vacation n June , 2

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    Award No4 37598

Docket No. MW-38617
 _®4_-

    aria' acs indicate June 6 he checked out of the Rails Inn.

    ever, heavy rains prevented i fro traveling t Valleyi , South

Dakota, on his motorcycle for an event that he planned to attend there, he checked
 back intte ails n Motel an remained there through is first rest y, n
 weather on Saturday a e held, over i Forsyth. t e
 Saturday, June 7, his scn rest .

 e Claimant states t June a believe that e injured attempting to intervene in an assault. Although he did not seek medical attention at
 the tie, thinking it s eelsprain, l tar ealuatiei
 e his fl. t tie the eater cleared doi stiff
 that his ankle was too swollen to support the weight of his motorcycle. He had no
 personal checks n little cash, ever, i t hold any credit .
 contacted , explained ined his transportation problem and checked back into a room
 t ails l f night, . y, i returned t t
 e, forcing t Claimant ti at the ethrough , June
 .usti t ii -i lodging i ,
 89 9, 10 and 11, 2003 without proper authorization.

 The Carrier based its permanent dismissal on findings that the Claimant was
 guilty f violating Maintenance y Operating es 1. (Safety); . .
 Engineering Instructions Rules 21.6.1 (Weekend Lodging); and 21.1 (Lodging Procedures - General). The most substantive charges
 implicate tar tree e Rules. They read in part as follows:

 (Furnishing Information);

 Maintenance __~. eats ing Rule 1.2.7: Furnishing Information

 "Employees, must not withhold information or fail to give all the
 acts to thauthorized ose t receive i for i ion regarding unusuai
 events, , accidents, personal injuries, or rule violations."

 ®~ie_ei ® . Instructions r.: o Procedures, red, , General

 " provides sass-relate hotel ti s t
 to el Leasing, r qualifying , structures,
 electrical, r equipment, welding, telecommunications,
 mechanical and signal employees. Employees ill vi it
 Form 1

 a

 Award No. 37598
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      _3- __


ritte instructions n lodging i e ticti card (IML)
 to cces Company-provided lodging accommodations.

 n employee cannot submit n expense report for tin unless
 authorized under or her prevailing labor agreement. All
 other employees must stin that has been arranged through

 L. s may scompany-provided lodging si -related purposes ay of use L for vacation r
 other esonal reasons."

 w i eerie Instructions 1. .1
i section applies I r entitled vi weekend lodging . . .

 their r.

 when they remain at the work site

 Employees i rover t eke for -
 latsely, provided that they have reservation through IML reservation system and check in to the lodging facility immediately after signing out from the previous work week.

 Employees must advise e their foremen before the end of their shift on
 Wednesday i the week t re working ithey wire eke
 lodging or Sunday check-in. T fore or foreman's designee
 must contact t the reservation center no later than Thursday morning
 t c fir t eke reservations for the employee.

      motel billing requirements, employees must sign t on the 1 say f their scheduled , eve i they wire e lodging tray night check-in . ..."


e Organization asserts in its appeal that the Carrier violated Rule 40 C, by
 t vi the five-day advance tic Investigation irequired. Addressing
 merits, it t argues that it was only the luck of the draw that required the Claimant to
 stay in Forsyth; that bad weather and a broken bone left him stranded there with no
 recourse; t e i t reasonably c e t simply keep
                                                  . 5

    e . -

                                              -3- - -


and e, includin trying t success t t a ride out Forsyth fro
 family members; tat a no intention f cheatin the Carrier out o in
 expenses; that he checked into'Company lodging fully intending to reimburse the
 rrier for his bill once he had gotten some cash; that a even contacted i a
 nsuccessful effort to etei o too about in s.

 T oar considere the anion's s Rule 40 C contention and finds it
 unpersuasive. a postal records establis that the Carrier set its Notice
 Investigation 1J. . Certified ail, retur receipt requested, June 1 , 2003 to
 the Claimant's address record, post office box, n that it s timely receive
 the postal facility. The Claimant, however, i t sign for its receipt and clai
 it until u , 2 . Accordingly, it s is delay i picking is ail, and not
 the Carrier's failure to send it on the schedule mandated by the Rule that accounts
 r the problem t Organization cites. t facts record t Carrier lie

 With respect to the merits, the record demonstrates that the Claimant
 exhibited or judgment under t rev iin conditions. t gives vertigo t think tat any open-eyed employee would use five days of unauthorized

 lodging a later e t e t world it the very limited l cash, ecks, credit cards." Employers have an absolute right to entertain
 substantially higher expectations of their employees,,

 Balancing that, the Claimant did not submit an expense report for lodging
 tat s se r for is a tee authorized. stay i a y-
 ride motel hen required o so, an other, but ten held over it

proper clearance. Under the circumstances, he displayed a lack of common sense. The real issue, ever, is whether tat irresponsibility s t the level f theft r attempted theft as charged.


People may argue about whether intentionality is an essential component of
 certai 1 ymisconduct - e. ., weapon n rises - to shifts quantum it comes caes of attempted t . s is crucially

 important i the cases f employees r ' e field, and i s ell settl tat
 major dishonesty on the part of such personnel requires no progressive discipline.
 But here the Carrier contends that an intent to defraud can be reasonably implied
 from the Claimant's delay in stepping forward to disclose his use of the motel room
 without issi . Given t Claimant's injury, ensuing vacation, attempts

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    . Award No. 37598 t . - 17 -- --


to explore reimbursement with several different clerks at , s f
 any evisuggesting dence tat the Carrier's Hearing tier e n credibility
 determinations i t text the case, that it e a reach.

 conch that the record does not estlis an intent to steal. The
 Claimant left the, premises at an appropriate time when his work was finished at
 Forsyth and held over. only when weather prevented his departure. In starting
 n the path ooin the rim thing, akin nttt t vei e f the
 ails Inn Motel r scows thereafter, and then trying repeatedly to
 determine how to srerv syste convert his si line
 use to personal use, the Claimant defeated any plausible charge of attempting to
 defraud. His failure - e not minimize i- s in t immediately advising
 his ervi r is circumstances.

 Insofar the record reveals, Claimant's service a this
 time satisfactory. Because of his lack of judgment in this matter, the Carrier
 expended significant amount ti an resources i running suspicious-
 looking incident to ground. His dismissal is converted t disciplinary sunsi
 fro dismissal t to reinstatement. backpay is are time
 out of service.

 sustained in accordance with the Findings.

 ORDER
Tis - r -, after consideration - dispute identified above, hereby orders
 that an award favorable to the Claimant(s) be made. The Carrier is ordered to make
 the r festive e on or before 30 days following the postmark date the Award is
 transmitted to the parties.

 L f it Division

 t Chicago, Illinois, is 2y September.