NATIONAL MEDIATION BARD
PUBLIC LAW BOARD NO. 7048 AWARD NO. 50 (Case No. 50)
BROTHERHOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION - IBT RAIL CONFERENCE
vs

 BNSF RAILWAY COMPANY
STATEMENT OF CLAIM:
William R. Miller, Chairman & Neutral Member Samantha Rogers, Carrier Member David T). Tanner. Labor Member

 "Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement commencing February 18, 2010, when Claimant, Melvin Denny (6595300), was dismissed for cashing a paycheck that was reported lost on May 2?, 2009 he requested replacement check stating he would not cash original check if found. It seas confirmed on January 4, 201(1 that both original and replacement checks had been cashed. The Carrier alleged violation of MOWOR Rule 1.6 Conduct and 1.13 Reporting and Complying with instructions.
2. As a consequence of the violation referred to in part I the Carrier shall reinstate the Claimant with all seniority, vacation, all rights unimpaired and pay for all wage loss commencing February 18, 201(/, continuing forward and/or otherwise made whale." (Carrier File No. 14-10-(1032) (Organization File No. 240-13D2-103.CLM)
FINDINGS:
Public Law Board No.

 ~, upo)n the whale record and all the evidence, finds and holds

 that Employee and Carrier are employee and carrier within the meaning of the Railway Later Act, as amended; arid, that tine Board has jurisdiction over the dispute herein; and that the parties to the dispute have participated in accordance to the Agreement that established the Board.

 On February 3. 2010. Claimant was directed to attend a formal Investigation on February 10. ?01(?, which was mutually postponed until February l fi* 2010. concerning in pertinent pare the following charge:



      "...for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged signing a Replacement Check Request on May 27, 2009 stating that you would not cash the original if it shoved up and then proceeded to cash your original check on October 19, 20119 after you had cashed your replacement check on the June 4, 2009. On January 27, 201() it was confirmed that both checks had been cashed.


      This investigation will determine possible violation of MOWOR 1.6 Conduct and MOWOR Reporting; and Complying with Instructions."


On March 12, 20 ltd. Claimant was notified that he had been found guilty as charged and he was dismissed.

      It is the Organization's position that the Carrier erred in its dismissal of the Claimant. It

argued that the Claimant was a 50 year old Navajo Indian employee with 15 years of service who
 is not well educated, speaks broken English and does not understand written English. It asserted
 that he has always worked a Trackman's position and is not a "book of rules" qualified employee:.
 therefore, he cannot be held accountable for something he is not qualified on which includes the
 Rules he was alleged to have violated. It further argued that the Claimant did next receive a
 regular pay check by mail in May of 2009. He was advised that he needed to sign a form to
 receive a replacement check, which he did. On May 27th a replacement check was issued and
 cashed. Claimant's job was abolished early in the work year and he was placed off-in-force
 reduction status in September. In October while going through his mail he discovered a pay
 check in the stack. He thought it was a check that he had not cashed and did not realize it was
 the duplicate check. ()n October 19, 2009, a full five months after cashing the replacement
 check he cashed the original check at a local store, where he cashes all of his checks- He did this
 to buy propane for heat, groceries and winter clothes for his six children and wife. The.
 Organization emphasized the fact that the Claimant did not understand that he was doing
 anything wTon,.

 The Organization also pointed out that when the check was reed to the store as not being any good the Claimant arranged to make restitution and the Carrier lost no funds and was not teed as a result of the check being cashed by the Claimant. It concluded by requesting that the dismissal be rescinded and the claim be sustained as presented.

 It is the position ofthe Carrier that Claimant was dismissed because he attempted to

 a duplicate check for $3,0141.88 that he did not perform work for. It argued in its denial letter of May 5, 2010, that the Claimant requested a Replacement Check Request form on May 27, 2009. for a lost paycheck and on the Replacement Cheek Request form it states:
                  P.LJ.I3. Nn. ?(143

                                  Award No. 50, Case No. 50

                                  Page 3


      "...The original check should be destroyed in the event it is found or received, and under no circumstances,, should I cash the original check.


      Falsification or failure to comply with this upreement may be subiect to approprintr disciplinary action, up to anti including termination. Fraudulent claims may result in prosecution..." (E_arrier emphasis added)


It stated that the replacement check was overnight mailed and cashed by the Claimant on June 4. 2009. On October 19, 2009. the Claimant cashed the original check and then at the Investigation he offered a variety of excuses for his theft,, but ultimately admitted his guilt, therefore., dismissal was appropriate. It closed by asking that the discipline not be disturbed.

 The Board has thoroughly reviewed the transcript and record of evidence and determined that the Investigation was held in compliance with Rule 13ta) the: Discipline Rule and Appendix No. 11. therel`ore, the claim will he resolved on its merits.

      Therre is no dispute between the parties and the Claimant that he requested a Replacement

'.heck Request form on May 27, 2009, for a misplaced check. The Carrier furnished a replacement check and on June 4, 2009, Claimant cashed that check. Subsequently. Claimant found the original check and cashed that check on October 19, 2009. At the Investigation the Claimant offered several reasons as to why he cashed the original check such as: (1) he happened to be looking through his mail and came across the check, but did not realize it was a duplicate; (2) had no money to pay bills and his family needed heat, food and clothing; (3) he has difficulty understanding English anti (4) he had heard that in the past people had done the same thing and it was just deducted out of their future checks.

 The Organization ol[ered an argument in behalfof"the Claimant that was not without some merit, that being that the Claimant did not realize the check cashed on October Wth was the original check that had been replaced and instead thought it was an un-cashed check. however, that argument lost its value when the Claimant testified on page 23 of the Transcript as follows-

        "Q So you know that there was going to be a check coming in to cover your, to cover the check that you didn't receive and you knew there was going to be another, the original check after that you weren't supposed to cash, correct?


        A Ves,1, didn't cash them until later on but by then it was like. It was in the mail the pile of mail. I just came across it.


        The?

                                  P.L.B. No. 7048

                                  Award No. 50, Gaze No. 50

                                  Page 4


      A I wasn't thinking of cashing it until I seen it,...


        Q And so just to confirm that we just stated on the record here is that you knew that you were not supposed to cash the original check?


      A Yes." (Underlining Baard`v emphasi-s)


Claimant further confirmed that he understood that he was not suppose to cash the original check when he testified on pages 33 of the Transcript that he thought the Carrier would make deductions from future. earnings. Ile testified in pertinent part as follows:

        "Q ...Prior to you being contacted by Mr. Blair, had you seen deductions in your check for this replacement check that you cashed that you weren't supposed to?


      A No.


      Q Why?


        A Because I thought they would, deduct them come later one some time. So I vas just waiting to see what was going to happen then.


        Q o when did you plan on saying something?


        A Maybe second check because when you look those things they're in there with all the deductions and stuff like that."


Can page 34 the questioning continued of the Claimant regarding potential deductions and he testified as fallow:

        "Q You weren't expecting it to be deducted for what you were allegedly going to owe back to the BNSF?


        A I was, I was wondering how much it was going; to be, you know, to see if they were going to take it alt or something.


        Q And when there was no deductions you didn't feet inclined to talk to your supervisor about that?


      A No, cause I thought the second check was going to be much more so there's

P.l..I3. No. 7048
 Award No. 50, Case No. 5(1
 Page 5

 maybe that was when they were going to deduct that. I expected that. I didn't think they would do it the frst one because it wasn't a whole lot of money for a week's pay." (Underlining Board's emphasis)
The Mr. Blair mentioned in the Claimant's aforementioned testimony was the Special Agent who did the initial investigation of the matter and questioned the Claimant along with Assistant Raadmaster, 'Ih. Julik on January 24. 2009, as to why he had cashed the original check. Claimant's testimony confirms that he knew prior to his meeting with the Special Agent and Supervisor that his conduct was improper as he was expecting deductions to be taken out of his checks, therefore. it is evident that the Claimant did not mistakenly believe that the check was a un-cashed check that had tern misplaced. The Organization's additional argument that because the disputed check was not honored by the Carrier there was "no harm thus no foul" does not prevail because it is clear that Claimant's actions were pre-mediated with intent to he paid fir work not performed. Substantial evidence ways adduced at the Investigation that the Carrier met its burden of proof that Claimant was guilty as charged.

 The only issue remaining is whether the discipline asset was appropriate. At the time of the instant dispute the Claimant had 15 years service which included a 46 day actual suspension within less than two years of the instant dispute. Theft car any other act with intent to defraud the Carrier of monies not due an employee is punishable by dismissal in accordance with the Carrier's Policy for Employee Performance Accountability (PEPA), therefore, the discipline was in accordance with PEPA and it will neat be rescinded because it was not arbitrary, excessive or capricious.

 Claim denied.

 AWARD
William R. Miller. Chairman & Neutryal Member

 Samantha Ropers. furrier lmhcr

 Award Date:

 David D. Tanner, Employee Member