Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44362 Docket No. MW-45774
21-3-NRAB-00003-200092
The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
(National Railroad Passenger Corporation (AMTRAK) – (Other than Northeast Corridor
“Claim of the System Committee of the Brotherhood that:
The discipline (dismissal) imposed upon Mr. R. Hawkins, by letter dated February 26 2019, for alleged violation of Amtrak’s Standards of Excellence and Ethical Conduct and Conflict of Interest Policy in connection with allegations that he stole products out of a locker room supply cabinet September 15, 2017 was arbitrary, capricious and constituted a violation of the Agreement (System File M-1915A- 502/BMWE-153812-D NRP).
As a consequence of the violation referred to in Part (1) above, Claimant R. Hawkins shall be:
‘*** immediately reinstated to service and compensated for all wages lost, straight time and overtime, beginning with the day he was removed from service and ending with his reinstatement to service excluding all outside wage earnings. Claimant be compensated for any and all losses related to the loss of fringe benefits that can result from dismissal from service, i.e., Health benefits for himself and his dependents, Dental benefits for himself and his dependents, Vision benefits for himself and his dependents, Vacation benefits, Personal Leave benefits and all other benefits not specifically enumerated herein that are collectively bargained for him as an employee of Amtrak and a member of the Brotherhood of
Maintenance of Way Employes Division of the International Brotherhood of Teamsters. Claimant to be reimbursed for all losses related to personal property that he has now which may be taken from him and his family because his income has been taken from him. Such losses can be his house, his car, his land and any other personal items that may be garnished from him for lack of income related to this dismissal.
In short, we herein make the demand that the Claimant be made “whole” for any and all losses related to his dismissal from service.’”
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 Claimant had established and maintained seniority under the Carrier’s Maintenance of Way Agreement over the course of approximately twenty-three years of service to the Carrier. On February 6, 2019, the Claimant was given notice of an investigation in connection with the following charge:
“On Friday, February 1, 2019, Amtrak Senior Management was informed by the Office of Inspector General (OIG) via email, that Foreman/ Trackman, Reginald Hawkins engaged in theft. At this time the OIG concluded its investigation into activities that on 9/15/2017, Mr. Hawkins stole products out of the locker room supply cabinet. Hawkins admitted that he did, in fact, put the bags full of supplies into his car and took the items home for personal use, and to give to people in his neighborhood who were in need.”
After a formal investigation on February 14, 2019, the Claimant was found in violation of Amtrak’s Standards of Excellence and Ethical Conduct and Conflict of Interest Policy and was dismissed from the Carrier’s service.
By letter dated March 25, 2019, the Organization appealed the assessed discipline. By letter dated May 3, 2019, the Carrier denied the Organization’s appeal. The parties were unable to resolve the claim on-property, so it is now properly before this Board for final adjudication.
The Carrier contends that it has provided substantial evidence that the Claimant intentionally stole supplies as charged and was initially dishonest when asked about it. In addition, the Carrier contends, the Claimant eventually admitted his guilt, and an admission of guilt obviates the need for further proof. The Carrier contends that numerous Boards have upheld dismissal from service for theft, even of small amounts.
The Carrier contends that the Organization relies almost exclusively on procedural arguments, none of which should overturn the penalty assessed for serious misconduct which has been admitted. The Carrier contends that until it received the OIG report, it did not know that a video showing the Claimant’s theft existed. Due to the dishonesty of another employee, the Carrier was prevented from investigating and did not have actual knowledge of the dishonesty until the OIG report was presented.
The Organization contends that the Carrier failed to timely charge the Claimant with wrongdoing, as Rule 15 of the parties’ Agreement requires that charges be brought within 15 days of actual knowledge of an offense. The Organization contends that the Carrier’s management had actual knowledge in 2017, when another employee informed them of the Claimant’s activities.
The Organization contends that OIG’s overlapping investigation did not remove the Carrier’s official’s knowledge of the underlying facts in November 2017, more than a year before charges were brought. The Organization contends that the OIG had custody of and relied upon the illegally recorded video, thus tainting the entire investigation.
The Organization contends that the Claimant had 23 years in the Carrier’s service without discipline on his record. The Organization concedes that the Claimant took items belonging to the Carrier and removed them for his own use but contends that the paper supplies were of small value and the theft was trivial.
The Carrier has presented substantial evidence of the Claimant’s guilt. Although he initially denied it, the Claimant eventually admitted that he had taken items belonging to the Carrier. Numerous Boards have held that theft of any kind is an extremely serious offense, regardless of the value of the stolen items.
The Organization raised several procedural arguments, including that the Carrier’s first knowledge of the underlying facts occurred in 2017 when another employee reported the incident to the Carrier. When confronted, the Claimant falsely denied any theft. Additionally, the employee lied to the Carrier and said that the video evidence had been destroyed, preventing the Carrier from investigating further. Although the OIG had a copy of the video, the Carrier’s first knowledge occurred when the OIG report was completed in February 2019. We find that the dishonesty of these two employees prevented the Carrier from investigating further and the charges following the OIG report were not untimely.
For the above reasons, we find that the Carrier’s decision to dismiss the Claimant was neither arbitrary nor excessive in light of the seriousness of the Claimant’s offense of theft.
Claim denied.
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 6th day of January 2021.