=iiDLIC LAW BOARD NO. 24.'9


QUM IF_ i,,rot.herhoori of Maintenance -of WaVF_maloves
 -_ L_0 __._. and
 DISr·UTE SouthernPacific Transoortation Company
 ._ _.__-_ _._, r Western Lines)

C·TOTl;·_-NT "1. That the Carrie, violated the provision= of the
 DE '.-Laylm: current Aareement when letter dated September :_·1,





Upon the whole record, after hearino, the Board finds that -tl;e parties herein are Carrier and Employees within the meaninaaf '-hoe Railwnv Labor Act. as amended, and that this Board as dal: constituted under- F·ablic Law 89-.-4·56 and has iurisdiction of the oar tyew anti the subiect matter.

 Thr;, rec:,rd
 F·1rrier"' C7!'

 Lnvolved

 maanauer.

 rW _.^.r7n?:ia b 1 R1t'i

 QT Track

 ,m,.: i-::e r L a l .

 indicates

 March 9.

 in this

 that

 1964 and

 Mr. Martinez had beers employed by at the time of the incident

 matter had been a district-Maintenance of Way

 On F,r..coc.cst ^3, 1985 h2

 bv

 or-em6n,

 1'. 84r1 r3 1 v

 Carrier ,end reverted

 Claimant

 used ties-

 was relieved of ha.=_ officer

 to his seniority aosi.ta.ron

 was chic°oed with selling camoanv;

 without authority and E.:eeoina the

money. f o.llow.ino wi -rove stioative hearing held on September M
 1005 Claimant was dismissed from service having been found ouiltv
 of the charges, - _ .

 Carrier insists that the investigation indicated that Claimant
 had sold without authority at least X00-Qf - Carrier--owned scrap
 ties to an individual and kept the money ($201(>) from that sale.
 Carrier argues -that this action on the mart of Claimant: was
 _n violation of Rule -£301 dealing with dishonesty and Rule 806
 which specifies that property of the company must not be sold or
 disposed of in any way except by proper authorities. In this
 instance, -according to Carrier. there is no doubt but that
 ClaimAnt sold the ties in puestion to an outside contractor. -a
 Mr. Chacon, and apparently kept $200 for-himself. In addition.
 Carrier note:. that keeoino cash from sales of this Woe is
 entirely in violation of company rules and practices. Carrier
 maintains that, with Claimant a Manager occupying a position of
 responsibility.. the betrayal of trust in this instance was
 totally unacceptable.

P-otitir_ner arguer that the record is clear in that Claimant had teen instructed tea sell the ties by his superior and thus did not do anyhhinu without proper authority. In addition. accurdino L;· F';='_a tionr . Popre ,.o no substantiat=o" that Claimant kept movies whicJ-r werr, paid to him by the outside contract-or out. on the

                                              2439 -~S


contrary. issued- receipts to the outside contractor sanparentl~ Ln triplicate) which covered the transaction. Therefore the Organization argues Claimant was not quiltv of any of the 0iolations allened by Carrier and should not, have been disciplined.


a review of the record of this matter indicates that it is apparent that. Claimant indeed was oiven authority MCI instructions to sell the used ties. It is evident that he did Aell the ties to ·- Mr. Chacon but in the course of the transaction did a number of things which were clearly mistakes in ju~domenL. For example. he issued a written receipt for oavment for :00 of the ties when in fact he had riot vet received three money, Secondly. he apparently did indeed accept cash in oavment for part of the ties which he indicated was a deposit. since L.he outside contractor at the time had neither a money order nor a ,-heck. This was in violation of Company practice and, policy. Further, apparent iv the mistakes were compounded when receipts ware issued to the outside contractor- by both Claimant: and his -. i er i.: errroneouslv.. Thus. there here three receipts- issued for the soma transaction.


=G= the- f9oard views it. in the course of this rather complicated ,_ tins rtt actions. Claimant was not aulltv of sell.Lnq com1_~3nv aromart, without authQri.tv. He was soecificallv authorized by hi..=_

                                              2q 3q -1~


                                            -4-


Superior to dispose of the Particular ties. Concernina the transactions themsci4en,. Claimant used extremely poor tudamenu in the course of sell ina the ti&s to Mr. Chacon, He accepted cash. he gave a receipt without having received monies and. in addition. there was a duplication of receipts subseauentIv. There no clear cut evidence to indicate that Claimant was auiltv of acceptzno money nersonallv for sale of company property. For theme rea=sons. as the Board views it. the penalty of dismissal WAS arbitrary and far in excess-of that reouired for Claimant.:. mistake l.n iudament. While- Carrier has the right to -demote Claimant from his position as a manager and officer. Carrier dial not. in the Board s view, oroperlv diswipline him by dismissal From hra = position as Track Foreman. For that reason the Board wjll order his reinstatement as Track Foreman with all rights,. vvntlud.ina seniorit:. unimpaired. but -without compensation for Limp lo=t as a result. of his mistakes_

aLr3~-r( s


ORDER

 Carrier Member

 Claimant shall be restored to his position as Track Foreman with all r.iohts unimpaired. beat will not receive oav for time lost. which will serve as a onnal l:v for the infractions involved.

 Carrier will comply with the Award herein within thirty CZUi days from the date hereof.

 San Francisco. California

 T. M, Lieberman, Neutral-C.-hairman

 C. F. Foose.~
 Employee Member