PUBLIC LAW BOARD NO. 4338
PARTIES) UNION PACIFIC RAILROAD COMPANY
TO )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM:
(1) The discipline assessed Extra Gang Foreman W. Santoscoy for
alleged violation of various company rules as indicated in Mr. M.
C. Frey's letter of October 7, 1988 and the affirmation of that
decision by Mr. Frey in his letter of November 16, 1988 and by
Assistant Director of Labor Relations R. D. Rock in his letter
of February 9, 1989 are arbitrary,
capticious
and unwarranted.
(2) The Carrier's handling of this discipline matter was also
procedurally defective as explained in the Organization's corres
pondence of November 3, 1988 and January 3, 1989.
(3) Due to the validity of Parts (1) and (2) it is claimed that
Mr. Santoscoy's record must be cleared of the discipline referred
to in Part (1) hereof and he must be returned to service with all
rights restored unimpaired and compensated for all time lost.
FINDINGS: This Public Law Board No. 4338 finds that the parties
herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, and that this Board has jurisdiction.
In this dispute the claimant was notified to attend an investigation in Los Angeles California on September 20, 1988 to develop the
facts and determine his responsibility, if any, in alleged misuse
of Company Rapidrafts on Thursday, September 1, 1988 at the Bartz
Chevron located at 7th Avenue, City of Industry, when he allegedly
purchased gasoline for Gelco Unit 1915-61656, for vehicle assigned
to Gang No. 7964 under his jurisdiction and rceive cash for the
cash discount. Pursuant to the investigation the claimant was
dismissed from the service of the Carrier.
W. S. Oakden,Manager of Track Maintenance, was notified there was
discrepancy in a Rapidraft used in Los Angeles. He stated that
after reviewing the information he removed the claimant from service pending an investigation. He testified that the Rapidrafts
contained a statement "Apply Cash Discount." Mr. Oakden stated
that all of his information came from Special Agent Jenson.
Special Agent Dennis Jenson testified that he received knowledge
that employees from the Union Pacific Railroad were using cash
back from Rapidrafts after purchasing gasoline on September 1,
1988. Mr. Jenson testified that he and Special Agent Don Tyler
approached the claimant and asked him if he, in fact, received
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cash back after purchasing fuel, and the claimant answered "yes."
He further testified the claimant told him he had on numerous
occasions received cash back over a period of time and further
stated that it was common practice and he had done so for years.
Mr. Jenson testified that the claimant further stated he had used
the money for the purchase of wax for his Company vehicle, window
washing fluid and other items such as that.
Mr. Jenson stated that Rapidraft 06460723, which was given to him
by the claimant as a draft he utilized the morning of September 1,
1988 at Bartz Chevron indicated 28 gallons of fuel for a total of
$34.38 which computes to $1.22 and 7/10 per gallon.
Mr. Jenson then testified the claimant told him that later on that
day he returned to the Bartz Chevron, and the advertised price per
gallon for self-service pump was $1.01 and 9/10 per gallon, and
the super unleaded was $1.22 and 9/10 per gallon, and the unleaded
price was $1.06 and 9/10 per gallon for self-service.
The claimant testified fie got $2.38 cash back on the date in
question. He stated he had always taken that money and kept it
in a kitty they used to buy products for the truck. The claimant
testified that when Mr. Jenson asked him how long that had been
going on, he stated the policy had been going on for years, but
he had not accepted cash rebates for years. The claimant testified
he kept the cash rebates in his shaving kit which he kept locked
in his truck.
The claimant further testified that Mr. Dannelly told the employees
he wanted those trucks cleaned up and kept clean. He stated that
his other truck got a medallion for having the cleanest truck in
that area.
The claimant testified this was the only means they had to obtain
money for wax, windex, paper towels, etc. He testified they purchased gasoline about every third day, but they did not wash the
windows each time because they were in a hurry to get in and out.
He testified he never used any of the cash for his own personal
use.
M. E. Canevit, Road Equipment Operator, testified that he was with
the claimant when he purchased the gasoline on the date in question
and saw the claimant give the Rapidraft, and he thought that he
received cash back and believed the claimant put the cash in his
black bag, which was the kitty.
Operator Canevit testified that the kitty was for purchasing things
to keep the trucks up, and the reason for that was that they were
not provided with windshield cleaner or paper towels or anything
like that, and they wanted to take special care of their trucks.
He stated he had seen the claimant buy Armorall and buy refills for
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Armorall and also buy paper towels and windex. He further stated
that at one time he got cash back, and he gave it to the claimant
who put it in the kitty.
Paul Dannelly, Manager of Engineering Maintenance for the service
unit testified he had instructed the employees to take good care
of their trucks and to have them look good and the appearance nice,
He testified he told them to find a car wash or a detail shop
periodically, usually from a month to two months. He stated that
sometimes he expected the employees to wash the cars but not to
wax them.
Manager Dannelly further stated that he had told the employees
who came to him that they could purchase the necessary supplies
with the Gelco Rapidraft or else FPO them. He stated employees
could use a Rapidraft for a car wash or towels, windex, armorall
or wax.
The Union contends there is a discrepancy between Mr. Dannelly's
testimony and the Special Agent's testimony as to whether the
Rapidrafts can be used to purchase windex, armorall, towels or
wax. The Union also contends the claimant was prejudged by the
Carrier since he was removed from service.
The Board has reviewed all the testimony of record and the exhibits submitted by the parties. The evidence is clear and
sufficient for the Carrier to find that the claimant was guilty
as charged. The Rapidraft states on its face that it is not to
be used for cash.
The Board has examined the evidence regarding the Rapidraft for
the date in question. If the claimant purchased regular gas, the
difference in the cost of fuel of $34.38 and what the cost should
have been was $5.88. If the claimant purchased unleaded gas, the
difference would have been $4.48.
When an employee purchases gas approximately every third day,
this sum amounts to a substantialtotal with which to buy paper
towels, wax, windex, etc. This is especially true when they are
authorized to have their pick up detailed on a regular basis.
The detail job includes the vehicle being waxed. The Board also
notes that the Rapidraft states on its face that it is not valid
for cash.
The evidence may be insufficient for the Carrier to find that the
claimant converted the funds to his own use, but the claimant did
misuse the Rapidrafts in such a manner as would allow funds to be
diverted.
The Board has carefully studied all of the evidence and testimony
submitted by the parties. It is always difficult to reach decisions
in termination cases. After much deliberation it is the opinion of
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the Board that the Board does not have the privilege of overruling the decision of the Carrier under the circumstances existing
herein.
AWARD: Claim denied.
Dated: July 21, 1989.
Preston . Moore, Chairman
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2-
Member
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Ca r Member