PAI°.I"IES TO TH E DISPUTE:


            Brotherhood of Maintenance of Way Employees


                    and


              Chicago and North Western Transportation Company


      STATEMENT OF CLAIM:


              Claim of the System Committee of the Brotherhood that:


                1. 'the dismisftl of Machine Foreman H. L. Smith, effective December 19, 197$, was without just and sufficient cause and wholly disproportionate to the alleged offense. (System File D-11-3-194).

f- 2. Machine Foreman H. L. Smith be returned to service with all rights

 unimpaired because of the violation referred to within Part 1 of
 the Claim.

 `~ OPINION OF HOARD:

 "' At the time this case arose in late 1975 Claimant had been in the employ
    ;° Carrier for some eight years, the.last five as a Machine Foreman. This race in

    volves Claimant's appeal from his discharge from Carrier's service following

    investigation into charges contained in a notice dated December $, 1975, reading in

    pertinent part as follows:

    "Please arrange to appear for hearing as indicated below:

          "Place: Trainaaster's Office - Sioux City, Iowa

          ''Time: 10:00 A.M.

          "Date: Wednesday, December lb, 1975 .

          "Subject of To determine your responsibility in connection with

          Hearing: removing 5 gals. gasoline from company truck at Onawa,

        transferring name to your ,)wn 5 gal. can putting it, ir: your personal vehicle 4bout 6:30 A.M. on Monday, December 8, 1975, for which you are charged with viola tion of Rule 9 from C,eneral Regulations and Safety Rules, effective June 1, 1967, reading as follows: 'Rule 9. Theft or pilferage is prohibited.'


        "You may be accompanied by an employee and/or representative of your choice subject to the provisions of the Schedule Agreement with the Brotherhood of Maintenance of Way Frployees; and you may, if you so desire, produce. witnesses in your own behalf without expense to the "transportation Company.

"You are hereby held out of company service pending results of hearing." The background facts in this case for the most part are undisputed. In his capacity as Section Foreman, Claimant is assigned a Company truck together with gasoline credit cards for the purchase of gas and necessary parts and equipment on Carrier's account. Farly on the morning of December $, 1975, Carrier's Special Agent, Douglas Maxin, observed Claimant at Carrier's pnawa, Iowa,, depot as he removed a 5-gallon can of gasoline from the bed of Carrier's Fngineering Department truck. Claimant transferred the gasoline in Carrier's gas can into another 5-gallon container of his own and then placed the can in the back of his own private vehicle. As he was making to exchange a train approached the depot, whereupon (Ilaimant hurriedly turned off all the lights until the train had passed and then he completed his transaction. The foregoing points are all contained in testimony of Agent Maxin at the hearing and investigations none of which were contradicted by (xaimant. Claimant was detained by the Agent who questioned him about hiF activitiP:: on the morning of December $, 1975. Mr. Smith did not deny taking the gasoline from the G--apany vehicle but offered several explanations, to wit.: 'l ,'Hp was reimbursing himself for five gallons of gasoline purchased three day:: earlier. (?~ He was reimbursing hiaself for gasoline purchased by him over the past eight month period. (3) fie was ,just taking the gasoline for his own pers-)nal u:e but

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many other employees hart done the name thing,; rind (4) he was reimbursing? himself for gasoline purchased over the last three months. 'when pressed, Claimant conceded that he did have gasoline credit cards to charge gas to Carriers account and he had no receipts to back up his claims for reimbursement. At the hearing andinvestigation conducted December 17, 1975, Claimant testified essentially as follows: "...I took it in equal payment to bolts which I had purchased for track machines and welding that I had done on various pieces of track machinery. Tt was for equal payment." Claimant also asserted that he was advised "in a roundabout way" by Company supervisors to reimburse himself in kind rather than file expense vouchers.
 The Organization on behalf of Claimant maintains that there is insufficient record evidence to establish that Mr. Smith was attempting to defraud Carrier or steal Company property. In this connectionit is pointed out that the gasoline was not placed in the gas tank of Claimant's vehicle, nor was it physically removed from Company property. Arg~uendo? the Organization maintains that Claimant is guilty of, at worst, poor judgment, and that the extreme penalty of dismissal from all services is not warranted on this record. Thus, the Organization urges that in light of Claimant's eight years of service he should be returned to service by this Hoard with all rights unimpaired in accordance with Rule 19-A of the controlling Agreement.
 Carrier for its part contends that the record clearly establishes claimant's guilt as charged of theft of Company property and that such has generally been recognized in railroad labor relations as a dischargeable offense. Carrier urges i:: the circumstances that no reasonable mind could find doubt as to Claimant's culpability and that the penalty assessed is not arbitrary, unreasonable or capricious.
 ,de have reviewed the entire record, particularly the transcript of the hearing and investigation on the property. There can be no doubt that Claimant in . fact stole five gallons. of gasoline from the Company truck and converted same to his

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own personal use. Claimant in fact , admits taking the gx,of ino but ,yff`err bare and unsubstantiated a::sf-rticn^ that he was reimbursing h;rr.:~-ef or, orders ,:f his .supervisor for gasoline and parts purchased by him for carrier out ofs.~.^:~-t. Clai.nant offers absolutely no subs tantisAtion for this defense. In light ; : the fact he was in possession of a Company credit card and the absolute paucity of evidence to support his assertions, we cannot find them believable. Nor is the Organization'r contention persuasive that because Smith did not remove the gasoline from Company property he was not guilty of theft. Fven if we were dealing with comma : law larceny, the asportation element would have beep satisfied when Claimant placed the gasoline in his own container and moved it to his personal vahir-le. 7n our judgment the theft was completed when he placed the gasoline under hir dominion and control and every piece of evidence as well as his own admission shows that he intended to use it for himself.
 The only quetion remaining is whether thh amount o_`' dircipliae _zpcsed is appropriate in all of the circumstances. 'We take no pleasure In nr·~si.~iia~ over the termination of an eight-year employee. But neither can we condone outright theft of Company property. numerous awards of the various divivions of the National Rai,, - road Adjustment Hoard establish the principle that dismissal is nut arbitrarily harsh discipline, absent clearly established :mitigating circumstance:, for employee,
 guilty of theft. See Second ?Division Awards x,.776, .#1913, #4h8h, `?.;r.'6, ~,a296, #3537, #3834, and #50143; Cf,, Third Division Award A~19037. In the facts and c.irc·um stances if this particular case we can find no basis for overturning Carrier's impositio%.:. r discipline and the claim must be denied. F'IN1)ING°
 Public Law R)xrd No. 1841, upon the whole rPc.:)rd and rill of the evidence, findF and holds as follows:

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1. That the ';arrier and Phplcy-- involved in this dl·:put- -r.-, respectively, Carrier rind xhploypen within the neaning of the PaUwly 1.nhor Act;
 2. that the .9oard has jur irdicti,~n over the dispute invnlvnd herein; and

 3. that the Agreement was not violated.

 A'ARD
The claim is denied.

 Dana E. F,ischen, Cha

 0. M. Rerge, Employee ember

 hated: f..(
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      Schmiege, Carrier