Public Law Board No. 4161
Parties to Dispute
Brotherhood of Maintenance of )
Way Employees )
)- Case No. 10
vs ) Award No. 9
Burlington Northern Railroad )
STATEMENT OF CLAIM
1. The dismissal of Section Foreman P. L. Bradford
for alleged 'violation of Rules 700 (B) and 706
of the Rules of the Maintenance of Way Department'
was arbitrary, capricious, without just and sufficient
cause and on the basis of unproven charges.
2. The Claimant shall be reinstated to service with
seniority and all other benefits unimpaired and
he shall be compensated for all wage loss suffered.
FINDINGS
On August 13, 1981 the Claimant was advised to attend an
investigation on August 18, 1981 to determine facts and place responsibility, if any, in connection with his alleged theft of cross
ties belonging to the Carrier. This alleged theft took place from
August of 1979 to July of 1981, and specifically on the date of August
4, 1981 according to the notice of investigation. After request
for postponement the investigation was held on August 21, 1981.
On September 11, 1981 the Claimant was advised that he had been
found guilty as charged and he was dismissed from service for
violating Carrier's Rules 700, 700 (B) and 706. After the discipline
was appealed on property up to and including the highest Carrier
officer designated to hear such this case was docketed before this
Public Law Board for final adjudication.
aD
MOWN
r~Aa
2;~ ;~s7
Urru.t v~
G,ENKRAI- CHAIRMAN
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Public Law Board No. 4161 (Award No. 9; Case No. 10)
The record establishes that the Claimant sold used
railroad ties to one,Linnton Feed and Seed Store, Portland, Oregon
at various times from 1979 through 1981. There is also no dispute
of fact that the Claimant was in the process of delivering more ties
to this same store on August 4, 1981 when his private truck was seen
by a Sgt.
R:. J.
LaGoe of the Portland Police Department on the propert
of the store "...backed up to a stack of used railroad ties". Accordin
to the record the ties were sold by the Claimant for 50fi per running
foot to the owner of the store. During the 1979-81 time-frame the -
Claimant had sold $3,048.00 worth of these ties to this retailer.
The only issue to be resolved in this case is whether the
Claimant was in violation of Carrier policy when he took used ties
from the Carrier's property and sold them for his personal gain.
The report by the Carrier's Division Special Agent dated
August 11, 1981 relative to the August 4, 1981 delivery of the
ties to the Linnton Feed and Seed Store states that the Roadmaster
under whom the Claimant worked stated that "...he had previously
given (the Claimant) permission to pick up used ties for his own
use only, and that they were not to be sold". During the investigation
this Yardmaster testified to the same effect when he stated that
"...I always instruct (employees) that (ties) are for their own
personal use only". It was company policy, according to the Yardmaste
to divide used ties into those which were saleable and those which
were "completely- worthless... (to be) ...hauled to the dump". The saleable ones were then either given away toeither employees for their
own use, or to institutions for charitable purposes, or sold through
the company's material department.
The Claimant was aware of this policy, and when he made request
for used ties prior to August 4, 1981 he was "explicitly"told,
according to the Yardmaster, that ties he took were for personal use
only. According to his own testimony, relative to this policy, the
Claimant states during the investigation that he was reminded
Public Law Board No. 4161 (Award No. 9; Case No. 10)
of it "about a year" before he received notice for this investigation,
by both the Yardmaster, and by a Carrier Special Agent who told him
that he could not "sell ties".
Did the Claimant, therfore, sell ties for his own profit in
violation of company policy which he both understood and which he was
reminded of a year before the investigation? According to informatior
provided by the retail store where the ties were sold, there is no
doubt that the Claimant did sell ties to this store which had been
taken from his employer from August of 1979 through approximately,
August of 1980 (Carrier's Exhibit No. 13). The Claimant states
in hearing that he did not know, prior to his talk with the Yardmaster
and the Special Agent, that he was not supposed to sell the ties for
personal gain. In addition to individual instructions on this matter
given by the Yardmaster to both the Claimant and other employees,
the Carrier's store department had issued written instructions,
according tothe record, some two and a half years prior to August
of 1981, on the disposition of used ties. In view of this the testimony of the Claimant must be considered gratituous with respect to
his knowledge of what used ties could be used for. Further, a Board
such as this, by long established precedent, cannot set itself up
as trier of fact when it is a question of conflicting evidence of -
record so long as evidence presented by the Carrier is not so clearly
devoid of probity that its acceptance would be- arse arbitrary and
unreasonable (Third Division 10791, 16281, 21238, 21612). There are
clearly reasonable grounds in the record which point to the fact that
the Claimant, a Section Foreman, was aware of company policy about
used ties well before he started selling them in 1979. Secondly, __
the Claimant states in the record, with respect to the delivery of
the August 4, 1981 load of ties to the retailer, that he had bought
the ties earlier and that he was just delivering them in exchange-for
others which he had taken back from the store, in a "deal" with the
owner, to "build a compost box for a friend". There are two evidentia
problems in the record with this version of the facts by the Claimant.
,
Public Law Board No. 4161 (Award No. 9; Case No. 10)
The first is that the Special agent testified that the owner of
the store stated to him that he had made a "...purchase of ten ties"
from the Claimant on that date. Since this issue is of considerable
importance to the Claimant it would have been a fairly simple matter
for him to have corraborated such story by documentary evidence from
the store owner. Absent such evidence, and in view of conflicting
testimony bythe-Special Agent, the credibility of such version of the
facts by the Claimant cannot be accepted (Third Division 10791 et al:
Snpra).1/Secondly, since the evidence of record points to a sale by
the Claimant to the store owner on August 4, 1981 the Claimant was
still in violation of the Carrier's policy even if the ties had been
purchased since he was selling them for personal gain. According to
the Claimant the load consisted in ten 8 foot ties. He purchased them
for $10. At 504 per running foot to the retailer, he stood to profit-$70.
There remains the issue of whether the. ties sold to the retailer
from September 1980 through August of 1981, in addition to those
delivered to the feed store on August 4, 1981, were property of the
Carrier or whether the ties were used property given to the Claimant
by another railroad, the Union Pacific. According to the Claimant,
the ties all came from the Union Pacific during this time period when
he sold them to the feed store and/or from some other source such
as the Port of Vancouver. Although the Claimant does not corraborate
these statements in the record, they must be accepted prima facie
since the Carrier does not prove, according to substantial evidence
criteria, that it was actually missing any used ties during the
-1/ The Yardmaster also testified that in conversations with the
store owner the owner had indicated to him that he had purchased the
ties from the Claimant on August 4 1981.
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Public Law Board No. 4161 (Award No. 9: Case No. 10)
time period: September, 1980-August, 1981 which were the result of
sales made to the feed store by the Claimant, in addition to those
taken from the property on August 4, 1981.
On merits, the Claimant is found guilty by the Board with respect
to violation of company rules for having sold used ties at a profit
to the Linnton Feed and Seed Store from August, 1979 through August
of 1980, and on August 4, 1981. The Rules at bar read, in pertinent
part,as follows.
Rule-700: Employees will not be retained in the service who
...are...dishonest...
Rule-700-M3: Theft or pilferage shall be considered sufficient
cause for dismissal from railroad service.
Rule-706: ...Property of the railroad must not be sold nor in
' any way disposed of without proper authority...
Dishonesty by employees has always been considered a serious
offense by arbitral forums in the railroad industry (Second Division
7519, 7570, 7575; PLB 4161, Award No. 8). In given cases there may
be extenuating circumstances which may move a Board to amend the
discipline of dismissal. Study of the complete record before it
warrants the conclusion by this Board, in the instant case, that such
circumstances are either totally absent or present to such minimal -
degree herein that amending the discipline is not reasonably justified.
The profits made by the Claimant for violating company Rules and
policy were the result of actions which were long-term and the result
of forethought. In addition the actual profit made was considerable.
Such considerations cannot be off-set by others, such as the fact that
the Claimant is a fairly long-term employee. On merits the claim
bannot be sustained.
-AWARD
Claim denied.
e
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Public Law Board No.
4161
.(Award No. 97 Case No. 10)
Earn
L.
suntrup, Neutral Member-
arr _ e. r
Karl ursen,k='p15y
a
q3'em~er
Date: /~