PUBLIC LAW BOARD N0. 1760
Award No. 15
Docket No. MW-DEC-77-36
Parties Brotherhood of Maintenance of Way Employees
to and
Dispute Norfolk and Western Railway Company
Statement
of Claim: Carrier violated the effective Agreement by dismissing
Douglas Newman, R. W. Wheeler, R. G. Winner and T. A. Smith
from service on September 21, 1977, without just and reasonable
cause. R. W. Wheeler, Doug Newman & R. G. Winner be
reinstated and paid for all time held out of service which
the Carrier did not sustain their charges and that T. A. Smith
be paid at his respective rate for the 60 days discipline,
all in accordance with Rule 20 of the effective agreement.
Findings: The Board, after hearing upon the whole record and all evidence,
finds that the parties herein are Carrier and Employee within the meaning of
the Railway Labor Act, as amended, that this Board is duly constituted by
Agreement dated February 2, 1976, that it has jurisdiction of the .parties
and the subject matter, and that the parties were given due notice of the
hearing held.
Claimant Newman had been employed over 31 years while the other
Claimants had been employed from some 2 to
4
months. On September 21, 1977,
Claimants were relieved from service. A formal investigation was conducted,
October 6, 1977, on the charges of illegal entry into a building and the
theft of personal property on September 21, 1977. As a result of the
investigation held, Claimants were notified, on October 25, 1977, that
except for Claimant Smith, their dismissal was being upheld. As to Claimant
'
PLQ 1710th
-2- Award No. 15
Smith, he was advised that as a result of this investigation his discipline
had been mitigated to sixty (60) calendar days.
We find that Claimants were accorded due process.
There was sufficient competent evidence adduced to support the
conclusions reached by Carrier. This is particularly so as is related to
the theft of personal property. The record reflects that a break-in had
occurred, on September 16, 1977, at the former Nickel Plate Depot at
Edwardsville, Illinois. There are two depots at Edwardsville, Illinois.
One depot on the former Nickel Plate side and the other on the former
Wabash side. It was reported that there had been a break-in on the night of
September 14th at the Nickel Plate Depot but that nothing was missing.
Despite the security measures taken at that time, during the night of
September 15th a window had been forced open and a caboose cushion taken.
On September 12 Claimant Winner had been found inside the locked Depot about
7:00 a. m. when the crew arrived for work. He was told by the Section crew
that he was on the wrong division and he should be over on the former Wabash
side instead of the former Nickel Plate. The building was checked on
September 17, 18, and 19 with no exceptions. However, 12:40 a. m. on
September 20 the patrolman making a check found the window open. A subsequent
check with the Section Foreman by a Carrier Police Lieutenant of the Property
Protection Department disclosed the following personal items missing:
two pairs of insulated boots, one pair of insulated
coveralls, one complete bedding for a roll away bed,
and one electric deep fryer, Sunbeam brand.
The Company property taken was one colored hard hat.
On September 21st, at 8:40 a. m., said Section Foreman and said
Police Lieutenant inspected the N&W bunk car, 5271718, located on the bung
PL d 1'160
-3- Award No. 15
track at Decatur Division, Edwardsville, Illinois. They found therein several
of the items which had previously been removed from the depot. Inside the
bunk car were found one pair of insulated boots, one pair of insulated
coveralls, one electric deep fryer, one electric toaster, the bedding for a
roll away bed. Claimants are four men who were living in said bunk car.
Claimant Newman was wearing the section colored hard hat. He
admitted that he got it out of the building and told the Section Foreman
that he got it out of the building.
Claimant Wheeler was wearing the shirt that was the property of
another man. He too admitted that he had gotten it from inside the building.
There was a jacket belonging to another employee laying on the floor.
The four men said that they went over to the depot to take a
shower. They said that the north door, where the houses are at, was open.
Claimants denied climbing in through the window. They said they did not know
how the pair of insulated boots, the insulated coveralls, the deep fryer, or
the electric toaster got in the bunk car.
Claimant Newman said that he took the roll away bedding because he
did not have any bedding for his bed.
Claimant Winner admitted that he had boots in the trunk of his
automobile. Claimant Winner opened up the trunk of his car and he gave the
boots therein back to the Section Foreman. The fifth man Claimant Smith was
living in town.
We conclude that the evidence was sufficient to support the
conclusions reached by Carrier and that the discipline assessed against
Claimants was not unreasonable. In the particular circumstances this
claim will be denied.
' P
LCi I~ba
· -4- Award No. 15
Award; Claim denied.
M. A. Christie, Employee Member
G.
C. Edwards, Carrier Member
A~
krthur T. Van Wart, Chairman
and Neutral Member
Issued at Falmouth, Massachusetts, May 31, 1979.