The instant claim arose as a result of an incident that occurred on December 25, 1981. Claimant with approximately five years seniority, was dismissed on December 29, 1981, account of his unauthorized removal of gasoline belonging to the N&W Railway fran a Valvoline Hydraulic Oil drum Wayne Section Tool House, Wayne, West Virginia. At approximately 2:15 PM Carrier's Special Officer Thompson, with 25 years seniority, was passing the area of the Section Tool House at Wayne, West Virginia, when he observed a door of the Tool House opened. Thompson investigated same and came upon Claimant Holloway in the midst of pumping gasoline from a drum through a hose into his personal automobile. At the time he was confronted, Claimant offered the explanation to Officer Thompson that he

On December 29, 1981 Claimant was dismissed from Carrier's service.

Organization, on Carrier's behalf, requested a formal investigation which was held on January 18, 1982. As a result thereof Claimant's dismissal was withheld.

The Board is satisfied that Claimant was accorded a full and fair hearing according to the mandates of the investigation rule. An examination of the evidence supporting the charges discloses it to be credible, and free of material inconsistencies or defects. Claimant freely admitted the removal of the gasoline, and there was little or no conflict between his testimony and that of Officer Thcopson's. At the time that Thompson encountered claimant removing the gasoline, after Claimant offered his explanation, Thompson asked Claimant to turn on his ignition in Claimant's vehicle and Thompson made the observation that Claimant's fuel tank indicator reflected a quarter tank present. Claimant lived approximately three-quarters of a mile to one mile from the Wayne Tool Shed.

Claimant contended that he was low on fuel and he was afraid to try to make it home for fear of running out of gas. However, Officer Thcmpson testified that approximately half mile from the site a Sunoco station was open, and, additionally, Thompson testified that in the west end of Wayne there were three or four gas stations located at the same vicinity, although he couldn't specifically state whether or not they were open. Clainart contended that there were no gas stations open.

Notwithstanding Claimant's contentions, nor the circumstances that he allegedly found himself in, Carrier chose to conclude that Clairant's

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explanation lacked credibility when juxtaposed to the close proximity to his hone and the fact that he had taken a quarter tank of gas to cover a mile or less distance.

Claimant had approximately five years seniority, during which tine he had an unblemished record. Notwithstanding, under the particular circumstances of this case Carrier chose to levy the ultimate penalty.

The Board can find no abuse by Carrier of its discretion to resolve the limited conflict in testimony against Claimant particularly when

an occurrence It was wholly

within the discretion of Carrier to determine whether or not it wanted to afford Claimant leniency. It has been too often stated to warrant citation in support thereof that the Hoard does not have the authority to exercise leniency. Ea the particular circumstances of this case we find no circumstances that would warrant an intrusion into the results thereof by the Board. Therefore we must conclude that the claim will be denied.

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