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.
The essential facts of this matter are not in dispute. On or about October 16, 2003, the Claimant charged three baseball caps under a Carrier purchase order. The purchase was not discovered until January 2004, when the vendor notified the Carrier that certain invoices remained unpaid. In going through those invoices, the Carrier discovered the Claimant's October 2003 purchase. As a result of its discovery, the Carrier notified the Claimant by letter of January 12, 2004 to appear for an Investigation concerning his "alleged failure to comply with NORAC Rules: B, D, and E, effective January 1, 2003." Specifically, he was accused of charging unauthorized goods on behalf of the Carrier.
An Investigation was held on January 30 and continued on February 2, 2004. On February 20, 2004, the Claimant was notified that he had been found guilty of the charges against him and was assessed 20 demerits. The Claimant was also notified via Form 104, also dated February 20, 2004, that he was dismissed from the Carrier's service "as a result of accumulating 75 Demerits through progressive violation of NORAC Operating Rules." His total of 75 demerits thus exceeded the 60 allowable demerit marks by 15 demerits. NORAC Rule E reads in pertinent part as follows:
There is no controversy in the record that the Claimant purchased three Larry Czonka baseball caps at a NAPA Auto Parts store at the same time he was Form 1 Award No. 38226
legitimately purchasing supplies (tie-downs) required to complete a task assigned to his gang by the Carrier. The Organization contends that the Supervisor encouraged the Claimant to do so, and also notes that the Claimant repaid the value of the caps as soon as he was informed he was under investigation. These two facts, according to the Organization, should mitigate the punishment assessed the Claimant-
A review of the Investigation transcript persuades the Board that the Claimant did not actually receive permission to purchase the caps in question. Foreman Smith testified consistently in response to questions from both the Organization and the Carrier that he did not give the Claimant permission to add the caps to the invoice for the tie-downs needed on the job. However, Foreman Smith apparently accepted one of the caps when it was offered to him. When questioned whether he directed the Claimant to buy the hats, Smith replied:
The record also clearly establishes that the Claimant repaid the amount charged to the Carrier prior to his Investigation. The Carrier insists that such an action should be viewed as merely a ploy to avoid being fired. There is no testimony in the record to suggest that the Claimant's motivation was so calculated, but the Board is persuaded that the Claimant did not have either express or implied permission from Foreman Smith to purchase the caps in question.
The third person in the gang - Trackman Eagan - was not in the store with the Claimant and Foreman Smith, yet his testimony in sum or substance confirms Foreman Smith's version of the incidents at issue. Notwithstanding, it is not clear why Foreman Smith, if he suspected at the time that the caps were purchased on a Carrier purchase order - as Eagan's testimony strongly suggests he did - declined to caution the Claimant at the time of the incident. Such a supervisory failing, however, is not the matter currently before the Board.
The Board carefully weighed the evidence. We are not dealing here with a long-term employee who made an isolated error in judgment. Rather, this is a situation in which a short-term employee (approximately two years' seniority) had Form 1 Award No. 38226
already accumulated 55 demerits and was assessed another 20 for misappropriating Carrier funds. Even if the Board were to reduce the penalty to ten demerits, in light off what might have been an unthinking impulsive act on the Claimant's part, his record would still reflect 65 demerits - five demerits over the amount precipitating dismissal. With a more senior employee, the Carrier's actions might have been seen as precipitous. In this case, however, the Board has no basis upon which to reverse the Carrier's imposition of the ultimate penalty of dismissal.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.