AWARD NO. 2 CASE NO. 2 PARTIES TO THE DISPUTE: Brotherhood of Maintenance of Way Employes and Chicago & North Western Transportation Company

 STATEMENT OF CLAIM:








OPINION OF BOARD:
 This Board, upon the whole record and all of the evidence,
 finds and holds that the employees and the Carrier involved in this
 dispute are respectively employees and Carrier within the meaning
 of the Railway Labor Act as amended and that the Board has jurisdiction
 over the dispute involved herein.
 At the time of dismissal, Claimant was employed as a Track
 Foreman and had twenty years seniority. On October 12, 1979, the
 Claimant was directed to attend a formal investigation on the
 following charge:
As a result of the investigation, the Claimant eras dismissed.
 In reviewing the evidence, there is no doubt the Claimant was guilty as charged. The evidence includes an admission by the Claimant that he and others used the Company truck, tools and materials to perform track work on a privately owned industry track and that they were directly compensated by the industry.
 The real question in this case is whether permanent discharge is appropriate. It is obvious that the charge is serious particularly the portion relating to misappropriation of Company material. It has often been stated that discharge is appropriate for serious charges of this nature. However, there are a couple of mitigating circumstances that tend to make.the Board believe a penalty short of discharge would be appropriate. First of all, the Claimant has a significant amount of seniority, some twenty years. Secondly, and most importantly, the Organization has shown that the use of Company truck and tools for this type of work was not clearly prohibited by past practice. Several employe witnesses testified that they had been permitted to do this type of work using Company truck and tools. Some of the witnesses further testified they had done this type of work in conjunction with Company supervisors. There was no refutation of this testimony in the record. Because this practice was not clearly prohibited by practice the Claimant cannot be entirely faulted far his behavior in respect to the use of the Comapny truck and tools.


While the Claimant's guilt is partially mitigated, it still
 remains that he misappropriated Company property and some form of
 punishment for this dishonesty alone is appropriate. Under the facts
 and circumstances of this case, a reinstatement of the Claimant without
 backpay and with trackman seniority rights only would be an appropriate
 penalty. Because of the nature of supervisory positions and the
 trust and integrity they require, the Board firmly believes the Carrier
 to this case should have the discretion to make this sensitive
 determination as to whether the Claimant's foreman seniority rights
 should be reinstated. If the Carrier does determine it is appropriate
 to reinstate the Claimant's foreman rights the Claimant should seriously
 consider that under the circumstances continued employment in such
 a position requires exemplary behavior.
 AWARD
The Claimant is to be reinstated with his trackman seniority rights unimpaired and with no pay for time lost within 30 days.

                    Gil Vernon, airman


H. . Harper, mq,oye Member . W . Crawford, qarrier Member

 Date: