Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43697 Docket No. MW-45171 19-3-NRAB-00003-180659

The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.

(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(BNSF Railway Company

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The discipline (dismissal) imposed upon Mr. J. Rodriguiz, by letter dated June 21, 2017, for violation of MWOR 1.6, 1.19 and 1.25 in connection with his conduct surrounding the replacement of tires on his company vehicle on May 2 and 9, 2017 was on the basis of unproven charges, arbitrary, excessive and in violation of the Agreement (System File C-17-D070-9/10-17-0222 BNR).

(2) As a consequence of the violation referred to in Part (1) above, Claimant J. Rodriguez shall be reinstated to service with seniority and all other rights and benefits unimpaired, have his record cleared of the charges leveled against him and he shall be compensated for all wage loss suffered including lost overtime, expenses and benefits."

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.

The Carrier asserts the Claimant took his truck to a tire shop and represented that the tires had been recalled, then asked for the old tires to be put into his truck. A fellow employe of the Claimant, L. Howard, said the Claimant had planned to sell them for a profit. When the Carrier looked into the matter, the tires were found in Howard's truck. Insofar as this was the Claimant's third Level S in an active review period, he was dismissed.

The Claimant testified he told the tire shop his tires were worn and needed to be replaced. He claimed the tire shop gave him permission to take the tires because "once they are off the vehicle, that it's their property." (TR 35) Both tire shop employees gave statements to the effect that the Claimant represented to them that the tires had been recalled,andthattheyinspectedthetiresthatwereonthetruckandsaw nothingwrong. The Carrier maintains no recall could be verified. It views theft as an extremely serious offense warranting the ultimate penalty of dismissal.

The Organization acknowledged that the Claimant took the tires, but notes he did not sell them. Instead, he gave them to Howard. The Claimant insists there was something wrong with the tires because they were not riding properly. He claimed he asked the shop what they do with replaced tires and said they offered them to him, advising that there was a disposal fee for old tires. Because of this, he said he did not consider them to be BNSF property.

The Organization cites procedural error in the case. It maintains a recording of a telephone interview with the tire shop manager was played during investigation but was transcribed with multiple advisories of "inaudible." It protests that there was no submission of the actual recording as part of the record.

Wearenotpersuadedthattherewasproceduralerrorinthiscase.Therecording was played in the presence of Organization Representatives. The Organization's objection is to the form of the evidence only. There has been no objection that the tape was actually audible where "inaudible" was noted, hence there is no cognizable claim that evidence has been lost through the Carrier's reliance on the transcript in lieu of the tapeitself.ThereisnostatementfromOrganizationRepresentativesthatthestatements

deemed "inaudible" were actually audible and probative of the Claimant's assertions. It follows that no prejudice has been shown.

ThoughHowardcouldhavebeenmotivatedtoalterhistestimony atinvestigation duetoconcernaboutthetiresbeingfoundinhisvehicle,nosuchmotivationisattributed to the personnel of the tire shop. The Organization claimed they were likely trying to cover for the fact that they did not seek authorization for the tire change, but we do not find this explanation to be either substantiated or persuasive. Rather, we find the statements of the shop personnel to be unbiased and corroborative. As such, we are persuaded that the Claimant did in fact represent that the tires were under recall he could in no way substantiate the existence of any recall or any problem with the performance of the tires.

This evidence, combined with the low mileage on the tires, lead us to conclude that the Carrier did indeed have substantial evidence for finding the Claimant's rule violation.

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 18th day of June 2019.