BROTHERHOOD OF MAINTENANCE OF WAN'
 EMPLOYES DIVISION - IBT RAIL CONFERENCE
BNSF RAILWAY COMPANY




STATEMENT ()I'` <.'GAIM:















FINDINGS:
public Law hoard No. 7(148. upon the whole record rind all the c% ideticc. finds and holds that Frriployce and (`arrie°r are employee and carrier within the meaning of Railway Labor 'Act as amended; and that the Bard has jurisdiction over the dispute herein: and that the: parties t« the: dispute have participated in accordance to the A=grecrnent that established the: Board.

 0n November ?4, 2(l10, Claimant was directed to attend a formal Investiilation can December 2, ?(l 10. concerning in pertinent part the tollowing char~,ee
P.L.B. No. '?'(i.#8
 Award No. 86, Case No. 86
 Page 2


On I)ccembcr? 1, ?010. Claimant was notified that he had been found guilty as charged and was dismissed from service.

 It is the; Organisation's position that the Claimant admitted he mistakenly used a Carrier tucl card on November 22. 2010, to purchase personal fuel. It argued that it was a honest mistake: and was nest done in an attempt to steal from tar defraud the Carrier of mc~nics_ It closed by requesting that the discipline be rescinded and the claim be sustained as presented.

 It is the; position of the Carrier that Claimant was seen at a gas station eon November ??nd. during his working hours filling up two cans ol~diesel fuel. Following that sighting of the Claimant he was witnessed by Assistant Road master Thomas transferring the gars cans into his personal pickup truck. Claimant was questioned by Assistant Road master Thomas with frainmastcr Farris their: as a witness. According tea it, both Thomas and Farris testifed the Claimant stated he used his own personal funds to purchase the gasoline: however, he did not have a receipt. Both Carrier Officers test Claimant's responses were questionable and because of that he was pulled from service and his company credit card was taken away from him, Thomas then contacted the Special Agent to have the matter investigated.

 Special Agent Miller went to the gas station where he took a statement from

 lanage:r

 who told hire the Claimant had called in and asked to have: the charge to r the; diesel fuel changed from the card he had given her to his personal card. 'I"he Special Agent stated the Manager told the Claimant that she could do that t{)r him if he would return to the station with loth credit cards. The Carrier argued the Claimant attempted to make restitution after he had already been caught, but because he n<> longer had his company credit card he was unable to get the charge removed. however, that attempt at restitution does not change: the tact that the Claimant intended to defraud the Carrier. It concluded by asking that the discipline nut he disturbed and the claim remain denied.

 The Board has thoroughly reviewed the transcript and record of evidence and has determined that the Investigation was held in accordance with Rule l3ta) the Discipline Mule and Appendix No. 11,

 There is no dispute between the parties arid the Claimant that on November 22, 20 10, the Claimant purchased two cans of diese1 fuel for personal use while on duty with a company credit surd. The Claimant argued he mistakenly used a company credit card rather than his personal card. On page 24 of the transcript Assistant F2oarlmaster Z`omas was questioned about whether or not it was possible the Claimant could have inadvertently used his company card rather than his personal card. hhorrias testified as follows:
 P. L.B. No.

 .ward No. fib, Case No. 86
 Page 3
"Brian Poston: Okay, you stated you observed him at the fuel station.
Tyler '!`homes: That is correct.
Brian Poston: Okay, !)id, uh, Mr. Bruce, rah, when you asked him, uh, about the fuel cans, what did he tell y«n?
Tyler `I`hornas: E-to said he pair! for it out cat' his own pocket, opened up his wallet and showed me.
Brian Postern: is it possible that he grabbed the wrong card and made the mistake at the end of a long day`'
Tyler Thomas: No.

 Brian Post«n: And, used the wrong card.'
'i'vEer `!`hontas: iota.

 Brian Poston- How do you know chat:' Did yon witness hires putting the card in'.'
Tyier Thomas: You have to enter your mileage of the vehicle, which y=ou know vourre doing on a c~nv. (Underlining ffrrurcf'1 e=rrrpdzcr.c-o t
Brian Poston: Sure.






Carrier Officer -I`hornas's testimony was net effectively rcrbuttcc3 arid it is clear that the Use ofthe company credit necessitated a step, the entering of mileage at the puma that would not he clone with a personal credit acrd and should have: alerted the Claimant to the ract that he was not using hip personal crefit card. `I`hc Claimant attempted to excuse is error can the basis that
 1'.L..B. No. 71)413
 .ward No. 86, Case No. 86
 Page -I
he was very tired, stressed and distracted. Cut as previously stated to use the company credit card sin employee is asked at the pump, once his card is swiped, to enter his employee fI> number and fits Nehicle mileage. These arc not questions that are asked i0hc Claimant had been using his; personal credit card.

 Review of the transcript, reveals that Claimant's testimony was evasive at page 44 when lie stated that he often used his personal gas cans for Carrier anti that he had asked Supervisor Sorenson in the past to purchase gas can:; for him. After the 1-Gearing Ot`ticer heard that ccrmtncnt he chose to telephone k1r. Sorenson to ask him to testify it-the Claimant had ever asked him to purchase gas cans for him in the past. ()n page 74 of the transcript Sorenson was questioned as toCCows:

 the only questions we'll have for you is,
is some just to help, uh, clarify for Mr. Bruce. Unit, Mr. Bruce said, um he was
 carrying around two five-gallon plastic containers in his personal vie- in hip,
 company vehicle because he did not have the proper BNSF safety fuel cans.
 tin, I asked Mr. Bruce if he had ever asked for any of the proper BNSF safety
 fuel cans. t'm, I asked Mr. Bruce if he ever asked for any of the proper BNSF
 safety cans, he said vies, that he had spoke to you. Do you remember any said
 conversation`'
_(nary (:ocz: All rich#.

 %dam Sorensen: I do not.




`Sorcnsen's testimony was not refuted and was more explicit and credible than that ot'thc Claimant. The record reveals that substantial evidence: was adduced at the InvestigatIion that the Carrier met its burden cafprool~that C.'Icum<mt knowingly nti:;usc:d his company credit card and ~vas guilty as charged.

 The only issue remaining is whether the discipline was appropriate. At the time ofthc incident the Claimant had approximately 17 scars of service which included a previous dismissal .With a Leniency Reinstatement and a 30-Day Record Suspension for taCsiticati<xn of'pavrc511 records. a little over cane vicar he tiore the subject dispute arose. NIany atrbitral tribunals have ruled that the intentional Misuse ot'company credit cards car theft oC`monica by employees- even these with are unblemished record. are t4r0uncis tf)r dismissal. The Board finds and holds the: discipline
 t'.L.B. No. 7_)48
 Award No. 86, Case No.
 Page 5

 will not be set aside as it wits in accordance with the C'arrier's ('olieN IOr knxployce Pert«rmance Accountability (1'I"I'A) and it was not excessive. arbitrary «r capricicrrtS. hhc claim will remain denied.





Samantha Rovers, ('articr~rnber David 1). Fanner. FrnploNcc Member

 :'tward Date:-'_~.~__ ~___