PARTIES Brotherhood of Maintenance of Way Employees
 DISPUTE: and
 Seaboard System Railroad
 STATEMENT Appeal by Trackman H. Smith from dismissal and claim
 CLAM: for reinstatement with seniority and all other rights
 unimpaired and compensation for all wage loss suffered
 FINDINGS: Claimant, assigned to a floating timbering gang, was
 working ten-hour days Monday through Thursday with
 Fri.day, Saturday and Sunday as rest days. On the
 . weekend of September 11 and 12, 1982, he remained
 in the camp cars since he could not afford the expense
 of going home.
 On Monday, when the crew returned to work, Trackman
 Moore discovered that eight cases of-motor oil were missing from the
 tool car.
 Foreman McLain testified that he investigated the
 matter and was informed by several local residents that claimant had
 taken and sold the oil and it is his testimony that when he questioned
 claimant, the latter admitted taking 'the oil. His testimony, though
 controverted by claimant, is definite and clear and unshaken., Carrier
3-794-~ , - .,

    credited McLain's testimony and we find no basis for setting it aside.

    In determining the measure of discipline, it was appropriate for Carrier to take into consideration claimant's past record which includes a number of instances of serious misconduct. In this setting, this Board will not substitute.its judgment for,that of Carrier. The decision on Carrier's part to dismiss claimant will not be set aside.

    °The'fact that claimant was not-found guilty of the theft of oil..in..a Court, proceeding does not call for. a contrary con- .. clusion. The rules. governing criminal court proceedings are not applicable to this proceeding under the terms of a collective bargaini.n.g agreement. ,Carrier's legitimate concern is whether claimant measured up to reasonable standards expected of an employee and not whether he breached the 1'aw.


    AWARD; Claim denied.


                  Adopted at Jacksonville, Florida 3 1985.


                            Q L .aa


                            M. Weston, Cha rman


arrier Member Employee timber