Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43351 Docket No. SG-44305 19-3-NRAB-00003-170386

The Third Division consisted of the regular members and in addition Referee Peter R. Meyers when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(Northeastern Illinois Regional Commuter (Railroad Corporation (NIRC/METRA)

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Northeast Illinois Regional Commuter Railroad Corp. (METRA):

Claim on behalf of B.T. Johnson, for reinstatement to service with compensation for all time lost, including overtime, with all rights and benefits unimpaired, and with any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 53 when it issued the harsh and excessive discipline of dismissal against the Claimant, without providing a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on March 2, 2016. Carrier's File No. 11-7-975. General Chairman's File No. 3-D-16. BRS File Case No. 15689-NIRC."

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.

By notice dated February 23, 2016, the Claimant was directed to attend a formal Investigation and hearing on charges that he (1) allegedly had failed to protect his position on several dates during December 2015 and January 2016, with the Carrier receiving first knowledge of the alleged incidents on February 23, 2016;

(2) allegedly had driven a Carrier vehicle without authority for his own personal business; and (3) allegedly had engaged in dishonesty and theft by submitting payroll sheets that falsely indicated that he had been present for his assigned hours. The Investigation was conducted, after a postponement, on March 2, 2016. By letter dated March 7, 2016, the Claimant was informed that as a result of the Investigation, he had been found guilty as charged, and that he was being dismissed from the Carrier's service. The Organization subsequently filed the instant claim on behalf of the Claimant, challenging the Carrier's decision to discipline him. The Carrier denied the claim.

The Carrier contends that the instant claim should be denied in its entirety because the Claimant received a fair and impartial hearing, because substantial evidence establishes that the Claimant was guilty as charged, and because the discipline imposed was not harsh, arbitrary, or an abuse of discretion, but was commensurate with the proven violation. The Organization contends that the instant claim should be sustained in its entirety because the Carrier committed procedural violations that denied the Claimant his right to a fair and impartial Investigation, because the Carrier failed to meet its burden of proof, because the Claimant was not dishonest, because the Claimant was prejudiced, and because the discipline imposed was harsh and excessive.

The parties being unable to resolve their dispute, this matter came before the Board.

The Board has reviewed the procedural arguments raised by the Organization, and we find them to be without merit. The record is clear that once the Carrier completed its Investigation of the Claimant's alleged wrongdoing, it issued a Notice of Hearing in a timely fashion. In addition, a review of the transcript makes it clear that the Claimant was guaranteed all of his due process rights throughout the proceeding.

The Board has reviewed the evidence and testimony in this case, and we find that there is sufficient evidence in the record to support the finding that the Claimant was guilty of violating Carrier rules when he was absent without authority from his workplace for several days and went to a barber shop where he was not performing Carrier business. The Carrier presented evidence that the Claimant spent time at the barber shop for periods that range from twenty-four minutes up to two hours and four minutes. The Claimant was supposed to be working during a great portion of that time. The Claimant's actions amounted to theft of Carrier time and were clearly dishonest behavior.

Once the Board has determined that there is sufficient evidence in the record to support the guilty finding, we next turn our attention to the type of discipline imposed. The Board will not set aside a Carrier's imposition of discipline unless we find its actions to have been unreasonable, arbitrary, or capricious.

The Claimant in this case was properly found guilty of very serious wrongdoing which basically is theft of Carrier time or theft of service. Dishonesty and theft are often dischargeable offenses, even on the first occasion. The Claimant in this case had only two years of service with the Carrier. Given that serious wrongdoing, coupled with his relatively short seniority, the Board cannot find that the Carrier acted unreasonably, arbitrarily, or capriciously when it terminated the Claimant's employment. Therefore, this claim must be denied.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 14th day of December 2018.