PUBLIC LAW BOARD NO. 24-39



PAPI-IES Brotherhood of Maintenance of Wav Emploves
 __.T9w_ and
 DSPUTE Southern Pacific Transportation Companv
 _..I .__._....- (Western Lines)

 STATEMENT "1. The Carrier -violated the provisions of the current
 C)F LIIh; Agreement when-it dismissed Track Foreman Paul




parties herein are
Carrier- and Emelovees within the meanina of

 the Railwav Labor Act, as amended, and that this Board is duly constituted under Public Law 89-45I_ and has jurisdiction of-the uartsn=_ and the subierni matter.. _

 Claimant herein was employed

 promoted to an exempt position

 the T·z.vlor Yard. On Feb-uarv 23

 while serving as Roadmaster athe current Agreement as a Trac4:

 n

 by Carrier in 1971,
 as Raadrnaster in L.as

 1986 he was removed

 d than exercised his

 Foreman. Ne worked

 that position ar,d thwn he was auazn removed fron

 Qncin.sian cot the f-nr-rnol tm:ar.ina held nn F'ebruarv

 He had been

 Angeles at

rights rights under

 twa days in

 , service at the

 13. 1986. That

                                              ,e.L,Vp- i is


hearing resulted ire Carrier- believina that. he was ou.iltv of the charges which specified that he had allegedly accepted compensation from an outside firm in the amount of 'S1ZGO -for track repair- work on the sour track in this outside concern's property and also for allegedly falsifying a Carrier questionnaire on February 12, 1982. For these infractions he was dismissed from service.


Carrier alleges that the record is clear that Claimant provided
 men and repairs without authority to an outside industry in the
 repair of that company's spur track, using Carrier's personnel
 and eauipment for that ouroose-Iie then retained the proceeds -
 from that work in addition to falsifying the ouestionnarre.
 Carrier also indicates that the district Maintenance of Wav
 Manager (since retired) and Carrier's Material Planner (also
 retired) were involved with Claimant in this fraudulent activity.
 The work in question was performed on May 11. 1981_ and the
 questionnaire was filled out some sir, months later. Carrier
 believes that the dishonesty explicit in this transaction by a
 trusted supervisor is wholly intolerable and the claim should tee
 denied. - -

Petitioner insists that the sole evidence that. the Carrier used was a cancelled check made payable to Claimant. and deposited an his bank. account.. That cbsck which was admitted by Claimant was

                                              PL9 -ay3~1 ALAo - i ~a


never -er;Nained fully in the heari.nabv either party. Accordina to Petitioner tbere- is no evidence whatever that Plaimant nerformed any work: for the outside company whatsoever. FurthermorF. Petitioner notes that it took nearly five veers- for Carrier to br.ina charges aoainst Claimant which made a proper defense almost impossible.


careful eN,amination of the record of this case involves. obscure testimony and considerable confusion. It is evident that the Claimant dial indeed receive a check even though he disclaims any knowledge of it at this time and it was -during a period of personal difficulty unrelated to his work activities. He insists that. the check constituted a loan from the former district Maintenance of Way Manager.-In view of the nature of the evidence in this dispute and the type of transgression involved, the Board reluctantly must assume that Carrier has failed to establish clearly the basis for its decision and discipline. Even though Claimant obviously used at best.- ooor iudament in acceot.inaa oawman! for whatever purnoses some five veers prior to the innostiaatlon. that does not establish the fraud ohich Carrier- - - auagests was involved.. While the Board is aware of Carrier's concern and orooer action with resouct to dishonesty of any kind. it is oarticularlv approoraate when- a supervisor- and trusted amrolovee is -involved. In this instance-. however. in view of Pattit.ioner's long service-with Carriar and the obscurity of the

      Z Vac

AwD - 1 12-

offense, it- is believed that dismissal was excessive as a penalty. It is this Board's .judgment that Petitioner should be reinstated to his former position as a Track Foreman but. receive no may for time lost. That: time lost together with his demotion from an officer's status is a sufficient Penalty for- the at least: Door- judgment. that he used in 1.982. He should never again be a position where any question concerning his integrity is raised or, if that did occur. dismissed forthwith.


AWARRD

 Claim sustained in mart. Claimant should be reinstated to his former Position of Track Foreman with all rights and seniority unimpaired but without compensation for time lost which shall be considered to have been a penalty for his transgression. ORDrf;

            Carrier will comply with the Award herein within thirty (3ri) days of the date hereof.


                _ _ _6 ~__~ _ ___ ___._~_ _. -

                1. 11. Lieberman. Neu airman


H~ I·loles. C. F. F'oose,
 Carrier Member Emolovee Member

 ·,on Francisco. California

 ~; v . 1988

 ~3