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.
Prior to his dismissal, Claimant L. Hailey, Jr. had established seniority in the Maintenance of Way and Structures Department dating from May 4, 1981. On the date involved, the Claimant was assigned and working as a Carpenter.
On July 8, 2003, the Claimant used his Company credit card to purchase fuel for his personal vehicle.
By letter dated July 11, 2003, the Claimant was given notice that a formal Investigation would be held on July 17, 2003 ". . . to develop the facts and place responsibility, if any, for your alleged theft when you used the company credit card for your personal vehicle on July 8, 2003, while working as Carpenter at College Avenue Station on the Geneva Subdivision . . .."
After one postponement, the Hearing convened on July 23. By letter dated August 1, 2003, the Claimant was notified that he was found guilty of violating Rule 1.6 and was ". . . assessed with a Level 5 discipline and dismissed from the service of the Union Pacific Railroad Company. . . :'
The Organization claims that the discipline was unwarranted. It asserts that the burden of proof in a discipline matter such as this is on the Carrier and that burden has not been met. The Organization stressed that the Claimant admitted that he used the Carrier's credit card to pay for fuel for his personal vehicle. However, the Claimant had every intention of reimbursing the Carrier for his purchase. The Organization claims that the Claimant's actions were in no way willful or in any way intended to defraud the Carrier. Moreover, the Organization claims that based on the Claimant's 22 years of service, the punishment of discharge Form 1 Award No. 37721
was too severe. It contends that the claim must be sustained and the Claimant be made whole.
Conversely, the Carrier takes the position that it met its burden of proof. The Claimant was afforded a fair and impartial Investigation in accordance with the requirements of the Agreement. The Carrier considers the Claimant guilty as charged. According to the Carrier, a review of the transcript as developed during the Investigation reveals that: the Claimant admitted that he used the credit card for personal use. This, pure and simply, was theft. Theft is an extremely serious offense and dismissal was appropriate under the circumstances.
In discipline cases, the Board sits as an appellate forum. We do not weigh the evidence de novo. As such, our function is not to substitute our judgment for the Carrier's, nor to decide the matter in accord with what we might or might not have done had it been ours to determine, but to pass upon the question of whether there is substantial evidence to sustain a finding of guilty. If the question is decided in the affirmative, we are not warranted in disturbing the penalty unless we can say it appears from the record that the Carrier's actions were unjust, unreasonable or arbitrary, so as to constitute an abuse of the Carrier's discretion. (See Second Division Award 7325 and Third Division Award 16166.)
The Board finds substantial evidence in the record to uphold the Carrier's position. The Claimant admitted that he engaged in the alleged act. While the Organization asserts that the Claimant intended to reimburse the Carrier for his purchase, he did not present such an offer until confronted. While there is no doubt that the penalty of discharge was severe, Level 5 discipline has been consistently accepted for a Rule 1.6 violation. Theft is a serious offense that deserves a harsh penalty. Other tribunals have held that theft, of even a minor value, deserves the penalty of discharge. Third Division Award 36337 involved an employee who stole rive gallons, of gas from a Company fuel can. In denying the claim, the Board held: