PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO ) AND
 DISPUTE ) BURLINGTON NORTHERN RAILROAD (Former Fort SVort Worti
 & Denver Railway Company)
 STATEMENT _ -
 OF CLAIM: 1. That the Carrier's decision to dismiss Track
 Laborer D. J. Maxwell was in violation of the
 current Agreement, in abuse of discretion, unjuE
 excessive and based on unproven charges.
 2. The Carrier will now be required to reinstate
 Claimant to his former position with seniority
 and all other rights restored, with compensatior
 for all wage loss suffered and the charges be
 stricken from his personal record.

 FINDINGS: By reason of the Memorandum of Agreement signed Nov
 ember 16, 1979, and upon the whole record and all tt
 evidence, the Board finds that the parties herein are employe and
 Carrier within the meaning of the Railway Labor Act, as amended, tha
 the Board has jurisdiction of the subject-matter, and that the parti
 including Claimant, were given due notice of the hearing held.

 Claimant Trackman D. J. Maxwell, with seniority date of January 21, 1975, was a regularly assigned employee working on the Channing, Texas section. Under date of July 29, 1985, Claimant was notified that:

 "As a result of the investigation afforded you at 8:00 A. Friday, July 19, 1985, at Amarillo, Texas, effective this date you are hereby dismissed from the services of the Burlington Northern Railroad company for violation of Rules 564, 575 and 580 of the Burl ton Northern Safety Rules and General Rules as was indicated by your unauthorized possession of railroad tools and attempt misuse of rail road credit card in March, April and May, 1985 as was disclosed in testimonies at the investigation."
                                      P~ ~9


                                      AWARD N0. 31 (p e)

                                      CASE NO. 40


The transcript of investigation shows the following answers by Claimant:

    "Q. Mr. Maxwell, Rule 575 of the Burlington Northern Safetv Rules reads as follows:


    "Theft or vandalism shall be considered sufficient cause for dismissal from railroad service. All cases of robbery or attemped robbery, theft of property belonging to or in charge of the railroad, or other unusual occurrences at or in the vicinity of stations must be promptly reported. Unauthorized possession of railroad tools, equipment and materials including commodities - in transit is prohibited."


Do you understand that under the requirements of this rule that unauthorized possession of tools is prohibited? A. Yes, sir, I do.

 Q. Do you understand that under the requirements of this rule theft
 of railroad property is considered cause for dismissal?
 A. Yes, sir.

 Q. As a trackman assigned to Channing Section, Channing, Texas in
 March, April and May of 1985, did you comply with the requiremen
 of this rule?
 A. No, sir.

 Q. You also understand that under the requirements of this rule yoi
 must not sell railroad property or pawn it when it is not yours -
 do so?
 A. Yes, sir.

 Q. Rule 580 of the Burlington Northern Safety Rules reads as follows

    "Unless specifically authorized, employees must not use the railroad's credit and must neighter receive nor pay out money on the railroad account. Property of the railroad must not be sold nor in any way disposed of without proper authority. All articles o .value found on railroad property must be cared for and promptly reported."


Do you understand that under the requirements of this rule _ou must neither receive nor pay out money on railroad credit cards? A. Yes, sir.

 Q. Do you understand also that under the requirement of this rule
 you must not sell or pawn railroad property when it is not Yours
 to do so?
 A. Yes, sir.
                                  AWARD NO. 31 (p. 3)

                                  CASE NO. 40


Q. As a trackman assigned to Channing, Texas, in March, April and
 May of 1985, did you comply with the requirements of this rule?
 A. No, Sir.

    Q. Mr. Maxwell, Rule 564 of the Burlington Northern Safety Rules reads as follows:


    "Employees will not be retained in the service who are careless of the safety of themselves or others, disloyal, insubordinate, dishonest, immoral, quarrelsome or otherwise vicious, or who conduct themselves in such a manner that the railroad will be subjected to criticism and loss of good will."


Do you understand that under the requirements of this rule that employees will not be retained in service who are dishonest? A. Yes, Sir.

 Q. As a trackman assigned to the Channing, Texas Section in March,
 April or May of 1985, did you comply with requirements of this
 rule?
 A. Yes, Sir.

 Q. Did you solicit cash for personal use based on presentation of
 a railroad credit card to Mr. Thompson during that period?
 A. I don't quite understand; could you r3peat it again?

 Q. Did you in the period of March, April or May of 1985 solicit
 cash for personal use from Mr. David Thompson, based on your
 presentation of a BN Railroad Company credit card?
 A. Well, if solicit means attempted, yes, sir.

 Q. Did you request that Mr. Thompson prepare a bogus invoice in
 connection with your presentation of the credit card for a cash
 advance for personal use?
 A. As I said earlier, I do not remember exactly what I asked him
 to write down on the credit card for cash.

 Q. During that period also did you take home a Homelite chainsaw
    without authority?

A. Yes, Sir.

 Q. Did you take home a McCullough chainsaw without authority?
 A. Yes, Sir." (Tr., pp. 28-30).

 The transcript of investigation shows the following testimony by gasoline station employee David Thompson:

 "About 4 months ago this young man (Claimant) driving an orange pic belonging to the Burlington Northern Railroad came into the station about 5 o'clock in the afternoon on a Sunday. He told me he had to go to Dalhart to straighten a wheel that Big Jr. had bent. He said
                                  AWARD N0. 31 (p.4 )

                                  CASE NO. 40 -


he wanted me to give him fifty dollars on his bank card. I told him I couldn't do that because we don't ring up credit cards and the register would not balance." (Tr., p. 13).

 "On a Saturday night at about 6:30 PM I came to the station and Maxwell was there talking to the black attendant. The attendant turned around and said, "There he is now." I walked in the statior and he said he had to go out of town again. He asked me for a hundred dollars. "I want you to fix me up a ticket. I have the card with me now." He said, "I know how to do it. I'll tell you what to put on it." "Make out 2 tickets and I'll tell you how many gallons to put down." He said, "Show 30 gallons hydraulic oil.' He said, "Show the rest in wash or whatever it takes to make a hundred dollars."...I told him I will not pad your bill." (Tr.; p.

 The evidence is clear and convincing that Claimant was in viola tion of Burlington Northern Safety Rules 564, 575, and 580. The Claimant admits to the violations. There was nothing arbitrary or capricious about the carrier's decision to terminate Claimant for these serious offenses.

 The Organization points out that Claimant's drug addiction shou.
 be seen as an illness or disease and that "this involvement wasthe
 motivation for Claimant's so-called wrong doing." Further, the Orgy
 ization points out that "There has been a long standing philosophy
 which eras developed over the years in the world of Industrial Rela
 tions whereby employes who have rehabilitated themselves-in an endeE
 or to become more productive and reliable employes and take their
 rightful place in society, such employes are deserving of consi-dera
 tion from their employers." -

 In effect, the philosophy put forward by the organization is a plea for mitigation or leniency on behalf of the Claimant. Claimant hard-won struggle to rehabilitate himself is commendable and is des: ing of consideration here, but it is well-settled by numerous award_· that leniency is a matter for the Carrier to determine and not for Board.

                    A W A R D


          1. The Carrier is not in violation of the agreement.


          2. The Claim is denied.


          JO P LAZ , CIIAIRMA,V AN RA~L,;TIEMBER

          -- ~,i ! .'-/l' ..i !1-- -


        2 C. F. FOOSE, EMPLOYE MEMBER L. MARES, CARRIER MEMBER


DATED: % % ! l-/ I/,