AWARD N0. 9 r"










    STATUSENT OF CLAIM: I


                      "Claim of the System Committee of the Brotherhood (CR-0649-D) that:


            (a) The Carrier violated the Rules Agrgement effective February 1, as amended by the interim Rules dated January 26, 1976, particularly Rule E-1, when it assessed discipline of dismissal on Clerk S. J. Stinson, on September 26, 1978.


            (b) Claimant Stinson's record be Ilea+d of the charges brought against him on July 25, 1978.


            (c) Claimant Stinson be restored to service with seniority and ail other rights unimpaired and bI compensated for wage loss sustained in accordance with the Irovisions of Rule F-1(e). Claimant also to be made whoIe fo any money he was required to spend for medical and hospital services, or other benefits which would otherwise have been c~vered under Travelers Group

            Policy CA-23000."'


    OPINI0_24 Or` BOARD:

    Claimant was employed by Carrier from 1943 until his dismissal from service in September 1978. He worked in tllllpe craft or class represented by the Organ ization.from the time of hi: hiring until his promotion in 1976 to the non-contract position of Sales Reprgsentative, New York City. Early in the month of March 1978, a preliminary audit by Carrier indicated probable evidence of impropriety by Claimant in th~ conduct of his duties for Carrier.


                              1

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    On :larch 8, 1978 an intens.ve transcribed ii terview of Claimant was con-


    ducted by two representatives from Carries'Is Special Audit Department. On :larch 21, 1978 ClaYGlant s_.gned a "volunta-r, statement" in which he admitted taking kic'·.cbacks totalling $2900, as well as gifts and other gratuities, far referring customers who had claims agains=(Carrier to a private claim agent( Thereafter, Claimant received a letter darLd June 14, 1978 from his Regional


    Sales haaager, as follows:


            This is cc confirm our ccnversafiion of today's date to the effect that T have been frsrructed to direct you to exercise your seniority Fights for cause.


    You have been informed of the t tune of the reasons

    for this action by ??r. Hagen and Nr. Cramer. Please

    direct yourself accordingly. $nis is effective with

    the close of business June 27.

    i

    Consequently, Claimant exercised his rig: is under the BRAG Schedule Agreement

    and displaced ontc a job of Crew Dispatcher in the craft or,cl'ass represented

    by the Organization. '

    Under date of July 25, 1978 Claimant was served with Notice of Investigation into the following charges:


              1. Received a check No. 678, fated April S, 1976, in the amount of $100.00 fror Joseph Maitre for furnishing confidential frei t claim information to ' an unauthorized party who,Tas not employed by the Railroad.


              2. Received the following ch~zks during the period November 1, 1972 to OctobIr 3, 1975, from Joseph Maitre for furnishing coldential freight claim information to an unautho izad party who was not employed by the Railroad:)


              CHECK h'UtfaER DAt AMOUNT


1125 11/1112 $200.
 1148 12/1p!72 200.
 1189 02/!73 200.
 1216 04/1 (73 200.
 . 132 05/ 5,173 300.
 1292 O8/Oc!73 200.
 1408 03/49174 200.
                298 05/2"/74 200.

                369 08/lb/74 200.

                328 08/31/74 200.

                1385 12/31/74 200.

                440'` 01./30/75 100.

                470 03/19/75 200.

                548 07/11/75 200.

                596 1~/~3/75 100. _


              3. During period 1957 to December x.977 you improperly received cash and unauthorized bratuities consisting of gift certificates front Railrbad Customers that you called on while you were working for the Railroad

' as Sales Representative.
    A Notice of Discipline was issued September 26, 1978 announcing that Claimant

    had been found guilty as charged and assessing discipline of dismissal in

    all capacities. That decision was appealed! without resolution on the property

    and cones to us for determination.


    Aside from some unpersuasive procedurll objections relative to the conduct of the hearing,, the Organization pri..m rily challenges this disciplinary action prenised upon arguments of "double jeopardy" and timeliness of the July 25, 1978 hearir.g. These are not matters of first impression between


                                  these sane parties under this same Agreeme~t. In a case very similar to the a present one, P.L.B. No. 2537, in Award No,' 20, dealt with those questions in a unanimous Opinion reading is pertinent fart as follows: '


            The Board does not find that rthe Carrier placed the Claimant in jeopardy ':rice or the same offense. The Carrier simply, by followi r the requisite contract provisions, did not allow the 'aimant to take refuge in his bargaining unit posit ia . The Board finds that the Carrier dfd not remove the Clzir^tant from his position as Manager of Freight Cla js because he was an unsatisfactory ?tanager of Freiqa Claims. The Carrier removed tire Claimant from service because he breached his duty and obligation to ren~er service to protect and safeguard his Employer's ircerests. The C laiaant having been remcved from his m~nagerial post for this violation of his basic obligation as an em.ployee, cannot take refuge in a bargaining a i: position and claim impunity for his culpable con, uct. The Carrier is


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            privileged to act on the conviction, after observing


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 2.23 - A lwA ___

              all the contractual requirementslp-rtaining to discipline, that the Claimant wall undesirable eL~ployee who had forfeited his r:g<<t to remain is the Carrier's employ, be it as a Manager of Freiht Claims 3r as a cleric. The Carrier could properly maintain that the magnitude of tie Claimant's off-ease cut across the entire spectrum of the employereployee relationship. The Cs; ier could proper:r conclude that the offense perpetrated by the Cla:3ant did not only run to his office as :tanager, of Freight Claims, but extended to each anal every aspect of his employment.


    - The Carrier, obviously, had to comply with the

        contractual mandate of the. Sche~3ule Agreement's

        Discipline Rule when it dealt w th tae Claimant as a

        covered employee. r'e find tha the Carrier coaplie3

        with contractual prescriptions-if the Discipline Rule

        and therefore it could dismissjthe Claimant under the

        aforesaid Discipline Rule.

        In our judg_ent, the foregoing Opinion is directly on point and is authori

        tative precedent which is dispositive of the argsnents raised by the Organiza

        tion herein.

1

We understand and are sympathetic do the Organization's concerns over

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        the apparently inexplicable three-month tde1ay by Carrier in removing claimant _


                                  from the non-contract Sales Representative job. But once he was back in the i craft or class, and subsect to Rule E-1j we find that he :-as afforded a timely and fa,_r investigation in which the evil4ence overwhelmingly establishes his culpability. Nor can we find the penal ty excessive given the very serious misconduct in which Claimant engagad. .Based upon all of the foregoing, ve must deny the claim.

        i FLNDINGS:


        Public Law Board No. 2263, upon the whole record and all of the evidence, finds and holds as follows:

        1. that the Carrier and Employee involved in this dispute are, respectively, Carrier and employee within t4 meaning of the Fwsilway Labor Act;


                                o _

and

 Berner, Ewployee Member

 Date:
        C_.:/;.·r


2. that the Board has jurisdiction over t~e dispute ..nvolved herein;

 3. that the Agreement vas not violated.

 Claim denied.
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Dana F. Eisthen; ~Traitnzn

 F. T. Lyn , Carrier Member